
[Federal Register Volume 78, Number 148 (Thursday, August 1, 2013)]
[Notices]
[Pages 46622-46643]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18474]


=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-70050; File No. 10-209]


Application of Topaz Exchange, LLC for Registration as a National 
Securities Exchange; Findings, Opinion, and Order of the Commission

July 26, 2013.

I. Introduction

    On July 3, 2012, Topaz Exchange, LLC (``Topaz Exchange'' or 
``Exchange'') submitted to the Securities and Exchange Commission 
(``Commission'') an Application for Registration as a National 
Securities Exchange (``Form 1 Application'') \1\ under Section 6 of the 
Securities Exchange Act of 1934 (``Act'').\2\ On December 19, 2012, 
Topaz Exchange submitted Amendment No. 1 to its Form 1 Application.\3\ 
On December 31, 2012, Topaz Exchange submitted Amendment No. 2 to its 
Form 1 Application.\4\ Notice of the Form 1 Application, as modified by 
Amendment Nos. 1 and 2, was published for comment in the Federal 
Register on March 7, 2013.\5\ The Commission received four comment 
letters regarding the Form 1 Application.\6\ Topaz Exchange submitted a 
detailed response to comments on July 11, 2013.\7\ On July 11, 2013, 
Topaz Exchange submitted Amendment No. 3 to the Form 1 Application.\8\
---------------------------------------------------------------------------

    \1\ On March 1, 2013, the Commission issued an order granting 
Topaz Exchange exemptive relief, subject to certain conditions, in 
connection with the filing of its Form 1 Application. See Securities 
Exchange Act Release No. 69011, 78 FR 14844 (March 7, 2013). Because 
Topaz Exchange's Form 1 Application was incomplete without the 
exemptive relief, the date of filing of such application is March 1, 
2013. Id.
    \2\ 15 U.S.C. 78f.
    \3\ Amendment No. 1, among other things, includes changes to the 
Limited Liability Company Agreement of Topaz Exchange, LLC (``Topaz 
Exchange LLC Agreement'') and the Constitution of Topaz Exchange, 
LLC (``Topaz Exchange Constitution'') concerning board composition 
and size, the initial director election process, and the use of 
regulatory funds. Amendment No. 1 also includes revisions to 
proposed rules of Topaz Exchange to remove rules relating to complex 
orders; to respond to comments on the Form 1 application from 
Commission staff; and to reflect recent changes to comparable rules 
of International Securities Exchange, LLC (``ISE''). Amendment No. 1 
further provides additional descriptions in the Form 1 Application 
regarding proposed allocation procedures, auction mechanisms, 
execution of qualified contingent crosses, and the interim and 
initial director election processes, and removes references to 
complex orders.
    \4\ Amendment No. 2, among other things, provides updated 
information regarding the board of directors of ISE and the 
Corporate Governance Committee of ISE and includes information 
regarding Longitude S.A., a newly incorporated affiliate of Topaz 
Exchange, which information includes the Articles of Incorporation 
and financial information for Longitude S.A. Finally, Amendment No. 
2 provides an updated organizational chart that reflects the 
affiliates of Topaz Exchange.
    \5\ See Securities Exchange Act Release No. 69012 (March 1, 
2013), 78 FR 14847 (``Notice'').
    \6\ See Letter from Angelo Evangelou, Associate General Counsel, 
Chicago Board Options Exchange, Incorporated, to Elizabeth M. 
Murphy, Secretary, Commission, dated April 23, 2013 (``CBOE 
Letter''); Letter from Jeffrey S. Davis, Vice President and Deputy 
General Counsel, NASDAQ OMX Group, Inc., to Elizabeth M. Murphy, 
Secretary, Commission, dated April 25, 2013 (``NASDAQ Letter''); 
Letter from Janet McGinness, EVP and Corporate Secretary, NYSE 
Euronext, General Counsel, NYSE Markets, to Elizabeth M. Murphy, 
Secretary, Commission, dated May 10, 2013 (``NYSE Euronext Letter 
I''); and Letter from Janet McGinness, EVP and Corporate Secretary, 
NYSE Euronext, General Counsel, NYSE Markets, to Elizabeth M. 
Murphy, Secretary, Commission, dated June 20, 2013 (``NYSE Euronext 
Letter II'').
    \7\ See Letter from Michael Simon, General Counsel and 
Secretary, Topaz Exchange, to Elizabeth M. Murphy, Secretary, 
Commission, dated July 10, 2013 (``Topaz Exchange Response 
Letter'').
    \8\ Amendment No. 3, among other things, includes changes to 
proposed Topaz Exchange rules to respond to concerns raised by the 
commenters and to reflect changes to comparable ISE rules since the 
filing of Amendment No. 1. The changes are discussed below in 
Section II.D. Amendment No. 3 also provides further descriptions or 
updates information in the Form 1 Application. The changes proposed 
in Amendment No. 3 are not substantive, are consistent with the 
existing rules of other registered national securities exchanges, or 
are responsive to the concerns of the commenters and do not raise 
any new or novel regulatory issues.
---------------------------------------------------------------------------

II. Discussion

    Under Sections 6(b) and 19(a) of the Act,\9\ the Commission shall 
by order grant an application for registration as a national securities 
exchange if the Commission finds, among other things, that the proposed 
exchange is so organized and has the capacity to carry out the purposes 
of the Act and can comply, and can 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.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78f(b) and 15 U.S.C. 78s(a), respectively.
---------------------------------------------------------------------------

    As discussed in greater detail below, the Commission finds that 
Topaz Exchange's application for exchange registration meets the 
requirements of the Act and the rules and regulations thereunder. 
Further, the Commission finds that the proposed rules of Topaz Exchange 
are consistent with Section 6 of the Act in that, among other things, 
they assure a fair representation of the exchange's members in the 
selection of its directors and administration of its affairs and 
provide that one or more directors shall be representative of issuers 
and investors and not be associated with a member of the exchange, or 
with a broker or dealer; \10\ and that they are designed to prevent 
fraudulent and manipulative acts and practices, promote just and 
equitable principles of trade, foster cooperation and coordination with 
persons engaged in regulating, clearing, settling, processing 
information with respect to, and facilitating transactions in 
securities, and remove impediments to and perfect the mechanisms of a 
free and open market and a national market system and, in general, 
protect investors and the public interest and are not designed to 
permit unfair discrimination between customers, issuers, or broker-
dealers.\11\ Finally, the Commission finds that Topaz Exchange's 
proposed rules do not impose any burden on competition not necessary or 
appropriate in furtherance of the purposes of the Act.\12\
---------------------------------------------------------------------------

    \10\ See 15 U.S.C. 78f(b)(3).
    \11\ See 15 U.S.C. 78f(b)(5).
    \12\ See 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

A. Overview of Ownership of Topaz Exchange

    Topaz Exchange is structured as a Delaware limited liability 
company

[[Page 46623]]

(``LLC''), and is a wholly-owned subsidiary of International Securities 
Exchange Holdings, Inc. (``ISE Holdings'').\13\ In December 2007, ISE 
Holdings became a direct, wholly-owned subsidiary of various German 
companies and Swiss companies \14\ through an intermediary holding 
company, U.S. Exchange Holdings, Inc. (``U.S. Exchange Holdings'').\15\ 
U.S. Exchange Holdings is wholly-owned by a German stock corporation, 
Eurex Frankfurt AG (``Eurex Frankfurt''). Eurex Frankfurt is a wholly-
owned subsidiary of a Swiss stock corporation, Eurex Zurich AG (``Eurex 
Zurich''), which, in turn, was in 2007 jointly owned by Deutsche 
B[ouml]rse and SWX Swiss Exchange AG (``SWX'') \16\ (``Eurex 
Acquisition''). In 2012, SWX transferred its interest in Eurex Zurich 
to a Swiss subsidiary of Deutsche B[ouml]rse (``Deutsche B[ouml]rse 
Acquisition''), such that Eurex Zurich is now jointly owned by Deutsche 
B[ouml]rse (together with Eurex Frankfurt, the ``German companies'') 
and EGD (together with Eurex Zurich, the ``Swiss companies,'' and the 
Swiss companies and the German companies are referred to collectively 
as the ``Non-U.S. Upstream Owners,'' and collectively with U.S. 
Exchange Holdings, the ``Upstream Owners''). As Deutsche B[ouml]rse 
holds a 100% direct ownership interest in EGD, it therefore holds a 
100% indirect ownership interest in Eurex Zurich.
---------------------------------------------------------------------------

    \13\ Following any Commission grant of registration to Topaz 
Exchange, ISE Holdings will be: (1) The sole holding company of two 
registered national securities exchanges, ISE and Topaz Exchange; 
and (2) the holder of a 31.54% ownership interest of a holding 
company, DE Holdings, that in turn owns two registered national 
securities exchanges, EDGX Exchange, Inc. (``EDGX'') and EDGA 
Exchange, Inc. (``EDGA''). See Exhibit C to Topaz Exchange Form 1 
Application, Section R (``Organizational Chart of Affiliates of 
Deutsche B[ouml]rse AG'').
    \14\ See Organizational Chart of Affiliates of Deutsche 
B[ouml]rse, Exhibit C. Section R. to Topaz Exchange Form 1 
Application.
    \15\ See Securities Exchange Act Release No. 56955 (December 13, 
2007), 72 FR 71979 (December 19, 2007) (File No. SR-ISE-2007-101) 
(order approving a transaction in which ISE Holdings became a 
wholly-owned indirect subsidiary of Eurex Frankfurt) (``Eurex 
Acquisition Order'').
    \16\ At the time, SWX was owned by SWX Group AG (later became 
part of SIX Group AG), which in turn was owned by Verein SWX Swiss 
Exchange. In 2008, SWX changed its name to SIX. In 2012, SIX 
transferred its interest to Eurex Global Derivatives AG (``EGD''). 
See Securities Exchange Act Release No. 66834 (April 19, 2012), 77 
FR 24752 (April 25, 2012) (File Nos. SR-EDGA-2012-08; SR-EDGX-2012-
07; and SR-ISE-2012-21) (order approving a transaction in which 
Eurex Frankfurt became a wholly-owned indirect subsidiary of 
Deutsche B[ouml]rse) (``Deutsche B[ouml]rse Acquisition Order'').
---------------------------------------------------------------------------

B. Governance of Topaz Exchange

1. Topaz Exchange Board of Directors
    The board of directors of Topaz Exchange (``Topaz Exchange Board'' 
or ``Board'') will be its governing body and will possess all of the 
powers necessary for the management of its business and affairs, 
including governance of Topaz Exchange as a self-regulatory 
organization (``SRO'').\17\ Topaz Exchange will be governed by a board 
of directors comprised of no fewer than 8, but no more than 16, 
directors.\18\ Specifically:
---------------------------------------------------------------------------

    \17\ See Topaz Exchange Constitution, Article III, Section 3.1.
    \18\ See Topaz Exchange Constitution, Article III, Section 
3.2(a).
---------------------------------------------------------------------------

     At least 50% of Topaz Exchange Board must be comprised of 
Non-Industry Directors; \19\
---------------------------------------------------------------------------

    \19\ See Topaz Exchange Constitution, Article III, Section 
3.2(b)(ii). In no event shall the number of Non-Industry Directors 
constitute less than the number of Industry Directors. ISE Holdings, 
Inc. may, in its sole discretion, elect one additional director who 
shall meet the requirements of Non-Industry Directors, except that 
such person was employed by Topaz Exchange at any time during the 
three-year period prior to his or her initial election. See Topaz 
Exchange Constitution, Article III, Section 3.2(b)(iv). This 
provision is similar to a provision in ISE's Constitution and has 
been used in the past to place a former president/chief executive 
officer of ISE on its board of directors (``ISE Board'').
---------------------------------------------------------------------------

     At least one of the Non-Industry Directors must be a 
Public Director; \20\
---------------------------------------------------------------------------

    \20\ See Topaz Exchange Constitution, Article III, Section 
3.2(b)(ii).
---------------------------------------------------------------------------

     Topaz Exchange Board will include the President/Chief 
Executive Officer as a director; \21\ and
---------------------------------------------------------------------------

    \21\ See Topaz Exchange Constitution, Article III, Section 
3.2(b)(iii).
---------------------------------------------------------------------------

     At least 30% of Topaz Exchange Board must be officers, 
directors or partners of Topaz Exchange members, and must be elected by 
a plurality of holders of Exchange Rights (``Industry Directors''), of 
which at least one must be elected by a plurality of holders of Primary 
Market Maker (``PMM'') Exchange Rights, one must be elected by a 
plurality of holders of Competitive Market Maker (``CMM'') Exchange 
Rights, and one must be elected by a plurality of holders of Electronic 
Access Member (``EAM'') Exchange Rights, provided that the number of 
each type of Industry Director shall always be equal to one 
another.\22\
---------------------------------------------------------------------------

    \22\ See Topaz Exchange Constitution, Article III, Section 
3.2(b)(i).
---------------------------------------------------------------------------

    As part of the process to elect members of the Board, the 
Nominating Committee will nominate the proposed Industry Directors and 
the Corporate Governance Committee \23\ or ISE Holdings will nominate 
the proposed Non-Industry Directors.\24\ A petition process will allow 
Topaz Exchange members to nominate alternative candidates for 
consideration as Industry Directors.\25\ At the first annual meeting 
and at each annual meeting thereafter, ISE Holdings will elect all of 
the members of the Topaz Exchange Board (except the Industry Directors 
which are elected by Topaz Exchange members \26\), but it will be 
required to do so in compliance with the compositional requirements for 
the Board outlined in the Topaz Exchange Constitution.
---------------------------------------------------------------------------

    \23\ See infra Section II.B.2. for a description of Topaz 
Exchange's Nominating Committee and Corporate Governance Committee.
    \24\ See, e.g., Topaz Exchange Constitution, Article III, 
Section 3.10(a)-(b). ISE Holdings, as the Sole LLC Member of Topaz 
Exchange, is permitted to petition the Corporate Governance 
Committee to propose alternative Non-Industry Directors and Public 
Directors. See Topaz Exchange Constitution, Article III, Section 
3.10(b)(ii).
    \25\ See, e.g., Topaz Exchange Constitution, Article III, 
Section 3.10(a)(ii). Specifically, as proposed in Amendment No. 1, 
in addition to the Industry Director nominees named by the 
Nominating Committee, persons eligible to serve as such may be 
nominated for election to the Topaz Exchange Board by a petition, 
signed by the holders of not less than five percent (5%) of the 
outstanding Exchange Rights of the series entitled to elect such 
person if there are more than eighty (80) Exchange Rights in the 
series entitled to vote, ten percent (10%) of the outstanding rights 
of such series entitled to elect such person if there are between 
eighty (80) and forty (40) Exchange Rights in the series entitled to 
vote, and twenty-five percent (25%) of the outstanding Exchange 
Rights of such series entitled to elect such person if there are 
less than forty (40) Exchange Rights in the series entitled to vote. 
For purposes of determining whether a person has been nominated for 
election by petition by the requisite percentage, no Topaz Exchange 
member, alone or together with its affiliates, may account for more 
than 50% of the signatures of the holders of outstanding Exchange 
Rights of the series entitled to elect such person, and any such 
signatures by such Exchange Members, alone or together with its 
affiliates, in excess of such 50% limitation shall be disregarded. 
Id. This process is identical to the process in place at ISE. See 
ISE Constitution, Article III, Section 3.10(a)(ii).
    \26\ See Topaz Exchange Constitution, Article III, Sections 
3.2(b)(i) and (c).
---------------------------------------------------------------------------

    The Commission believes that the requirement in the Topaz Exchange 
Constitution that at least 30% of the directors be Industry Directors 
and the means by which they will be chosen by Topaz Exchange members 
\27\ provide for the fair representation of members in the selection of 
directors and the administration of Topaz Exchange and therefore is 
consistent with Section 6(b)(3) of the Act.\28\ Section 6(b)(3) of the 
Act requires that ``the rules of the exchange assure a fair 
representation of its members in the selection of its directors and 
administration of its affairs and provide that one or more directors 
shall be representative of issuers and investors and not be associated 
with a member of the

[[Page 46624]]

exchange, broker, or dealer.'' As the Commission previously has noted, 
this statutory requirement helps to ensure that members have a voice in 
the exchange's use of self-regulatory authority, and that the exchange 
is administered in a way that is equitable to all those persons who 
trade on its market or through its facilities.\29\ In addition, with 
respect to the requirement that the number of Non-Industry Directors, 
including at least one Public Director, will at all times be at least 
50% of the Board, the Commission believes that the proposed composition 
of the Topaz Exchange Board satisfies the requirements of Section 
6(b)(3) of the Act.\30\
---------------------------------------------------------------------------

    \27\ Id.
    \28\ 15 U.S.C. 78f(b)(3).
    \29\ See, e.g., Securities Exchange Act Release Nos. 53128 
(January 13, 2006), 71 FR 3550 (January 23, 2006) (File No. 10-131) 
(order granting the exchange registration of Nasdaq Stock Market, 
Inc.) (``Nasdaq Order''); and 58375 (August 18, 2008), 73 FR 49498 
(August 21, 2008) (File No. 10-182) (order granting the exchange 
registration of BATS Exchange, Inc.) (``BATS Order''). See also 
Securities Exchange Act Release No. 53382 (February 27, 2006), 71 FR 
11251 (March 6, 2006) (File No. SR-NYSE-2005-77) (``NYSE/Archipelago 
Merger Approval Order'').
    \30\ 15 U.S.C. 78f(b)(3). See also Securities Exchange Act 
Release No. 68341, p.8, (December 3, 2012), 77 FR 73065, 73067 
(December 7, 2012) (File No. 10-207) (order granting the 
registration of Miami International Securities Exchange, LLC) 
(``MIAX Order'') and Regulation of Exchanges and Alternative Trading 
Systems, Securities Exchange Act Release No. 40760 (December 8, 
1998), 63 FR 70844 (December 22, 1998) (``Regulation ATS Release'').
---------------------------------------------------------------------------

Interim Board
    After Topaz Exchange is granted registration by the Commission, but 
prior to commencing operations, ISE Holdings, as the sole shareholder 
of Topaz Exchange,\31\ will appoint an interim board of directors for 
Topaz Exchange that will serve only until the first annual meeting 
(``Interim Topaz Exchange Board''). The Interim Topaz Exchange Board 
will include the same individuals as the then-serving ISE Board and 
will consist of 15 directors: the President/Chief Executive Officer 
Director; \32\ 6 Industry Directors; and 8 Non-Industry Directors.\33\ 
Topaz Exchange represents that it anticipates that there will be a 
significant overlap between its membership and the membership of 
ISE.\34\ Topaz Exchange further represents that it does not expect to 
receive a meaningful number of applications for membership from non-ISE 
members during the tenure of the Interim Topaz Exchange Board.\35\ 
Thus, the 6 interim Industry Directors to be appointed to the Topaz 
Exchange Board likely will have been elected by Topaz Exchange members 
in their capacity as ISE members.\36\
---------------------------------------------------------------------------

    \31\ See infra Section II.C.1. for a discussion of the ownership 
of Topaz Exchange.
    \32\ See Exhibit J to Topaz Exchange Form 1 Application.
    \33\ See Exhibit J to Topaz Exchange Form 1 Application. See 
also Amendment No. 3.
    \34\ See Exhibit L to Topaz Exchange Form 1 Application. Based 
on discussions with ISE members, Topaz Exchange represented that it 
currently expects that Topaz Exchange's membership will consist 
substantially of current ISE members, including, but not limited to, 
those ISE members that have representatives serving as industry 
directors on the ISE Board. See Exhibit J to Topaz Exchange Form 1 
Application.
    \35\ See Exhibit J to Topaz Exchange Form 1 Application.
    \36\ See id.
---------------------------------------------------------------------------

    These interim Industry Directors will serve until the first initial 
Topaz Exchange Board is elected pursuant to the full nomination, 
petition, and voting process set forth in the Topaz Exchange 
Constitution and described above.\37\ Topaz Exchange will complete such 
process as promptly as possible and within 90 days after its 
application for registration as a national securities exchange is 
granted by the Commission.\38\
---------------------------------------------------------------------------

    \37\ See Topaz Exchange Constitution, Article III, Sections 
3.2(c) and 3.10; see also Exhibit J to Topaz Exchange Form 1 
Application.
    \38\ See Exhibit J to Topaz Exchange Form 1 Application.
---------------------------------------------------------------------------

    The Commission believes that the process for electing the interim 
Topaz Exchange Board, as proposed, is consistent with the requirements 
of the Act, including that the rules of the exchange assure fair 
representation of the exchange's members in the selection of its 
directors and administration of its affairs.\39\ The Interim Topaz 
Exchange Board will be filled by current ISE Board members (which 
currently include Industry Directors who were elected by current ISE 
members) until the first annual meeting of Topaz Exchange. As noted 
above, Topaz Exchange represents that it anticipates that there will be 
significant overlap between the initial members of Topaz Exchange and 
the current members of ISE.\40\ Topaz Exchange further represents that 
it will complete the full nomination, petition, and voting process as 
set forth in the Topaz Exchange Constitution,\41\ as promptly as 
possible and within 90 days of when Topaz Exchange's application for 
registration as a national securities exchange is granted.\42\ As noted 
above, as part of this process, members of Topaz Exchange will be able 
to petition for alternative candidates to be considered for Industry 
Director positions.\43\ This process will provide persons who are 
approved as members of Topaz Exchange after the effective date of this 
Order with the opportunity to participate in the selection of the 
Industry Directors within 90 days of when Topaz Exchange's application 
for registration as a national securities exchange is granted.
---------------------------------------------------------------------------

    \39\ See 15 U.S.C. 78f(b)(3). Topaz Exchange's proposed timeline 
for the interim Topaz Exchange Board process comports with the 
interim board process recently approved by the Commission for the 
Boston Options Exchange (``BOX'') and Miami International Securities 
Exchange, LLC (``MIAX''). BOX, which previously operated as a 
facility of NASDAQ OMX BX, Inc., recently was granted registration 
as a national securities exchange. See Securities Exchange Act 
Release No. 66871 (April 27, 2012), 77 FR 26323 (May 3, 2012) (File 
No. 10-206) (``BOX Order''). NASDAQ OMX BX recently received 
approval for a new options market. See Securities Exchange Act 
Release No. 67256 (June 26, 2012), 77 FR 39277 (July 2, 2012) (File 
No. SR-BX-2012-030) (``BX Order''). MIAX recently was granted 
registration as a national securities exchange. See MIAX Order, 
supra note 30.
    \40\ Topaz Exchange will have a streamlined waive-in process for 
existing ISE members to apply for membership on Topaz Exchange. See 
Topaz Exchange Rule 302(a).
    \41\ See, e.g., Topaz Exchange Constitution, Article III, 
Section 3.10(a)-(b).
    \42\ See Topaz Exchange Constitution, Article III, Sections 
3.2(c) and 3.10.
    \43\ See Topaz Exchange Constitution, Article III, Section 
3.10(a)(ii).
---------------------------------------------------------------------------

    The Commission believes that the Interim Topaz Exchange Board 
process is designed to provide member representation sufficient to 
allow Topaz Exchange to commence operations for an interim period prior 
to going through the process to elect a new Board pursuant to the full 
nomination, petition, and voting process set forth in the Topaz 
Exchange Constitution.

2. Exchange Committees

    Topaz Exchange will have a number of Board committees,\44\ 
including an Executive Committee (consisting of six directors, 
including three Non-Industry Directors),\45\ a Finance and Audit 
Committee (consisting of between three and five directors, all of whom 
must be Non-Industry Directors),\46\ a Compensation Committee 
(consisting of between three and five directors, all of whom must be 
Non-Industry Directors),\47\ and a Corporate Governance Committee 
(consisting of at least three directors, all of whom must be Non-
Industry Directors),\48\ and such other additional committees as may be 
approved by the Topaz Exchange Board.\49\
---------------------------------------------------------------------------

    \44\ See Topaz Exchange Constitution, Article V, Section 5.1(a).
    \45\ See Topaz Exchange Constitution, Article V, Section 5.2.
    \46\ See Topaz Exchange Constitution, Article V, Section 5.5.
    \47\ See Topaz Exchange Constitution, Article V, Section 5.6.
    \48\ See Topaz Exchange Constitution, Article V, Section 5.4.
    \49\ See Topaz Exchange Constitution, Article V, Section 5.1(a).
---------------------------------------------------------------------------

    Topaz Exchange also will have a Nominating Committee, which will be 
a

[[Page 46625]]

committee of Topaz Exchange and not a committee of the Board.\50\ The 
Nominating Committee will be composed of three industry 
representatives, and will be responsible for nominating candidates for 
Industry Director positions.\51\ As noted above, there will be a 
petition process by which members of Topaz Exchange can nominate their 
own nominees for the Industry Director positions.\52\ These nomination 
processes are consistent with processes that the Commission has 
approved for other exchanges.\53\
---------------------------------------------------------------------------

    \50\ See Topaz Exchange Constitution, Article V, Section 5.3.
    \51\ See id. The Interim Topaz Exchange Board shall appoint the 
initial members of the Nominating Committee in accordance with the 
qualifications prescribed in Section 5.3 of the Topaz Exchange 
Constitution.
    \52\ See Topaz Exchange Constitution, Article III, Section 
3.10(a)(ii). See also supra note 25 and accompanying text.
    \53\ See, e.g., ISE Constitution, Articles III and V, Sections 
3.10 and 5.3; MIAX By-laws Articles II and V, Sections 2.4 and 5.3.
---------------------------------------------------------------------------

    The Commission believes that Topaz Exchange's proposed committees, 
which are similar to committees maintained by other exchanges,\54\ are 
designed to help enable Topaz Exchange to carry out its 
responsibilities under the Act and are consistent with the Act, 
including Section 6(b)(1), which requires, in part, an exchange to be 
so organized and have the capacity to carry out the purposes of the 
Act.\55\
---------------------------------------------------------------------------

    \54\ See, e.g., MIAX Order, supra note 30, and BOX Order, supra 
note 39.
    \55\ 15 U.S.C. 78f(b)(1).
---------------------------------------------------------------------------

C. Regulation of Topaz Exchange

    When Topaz Exchange commences operations as a national securities 
exchange, Topaz Exchange will have all the attendant regulatory 
obligations under the Act. In particular, Topaz Exchange will be 
responsible for the operation and regulation of its trading system and 
the regulation of its members. Certain provisions in the Topaz Exchange 
and ISE Holdings governance documents are designed to facilitate the 
ability of Topaz Exchange and the Commission to fulfill their 
regulatory and oversight obligations under the Act. The discussion 
below summarizes some of these key provisions.
1. Ownership Structure: Ownership and Voting Limitations
    As noted above in Section II.A, Topaz Exchange will be structured 
as a Delaware LLC and will be a wholly-owned subsidiary of ISE Holdings 
\56\ following any Commission grant of registration to Topaz Exchange 
as a national securities exchange.\57\ ISE Holdings is owned by German 
companies and Swiss companies through an intermediary holding company, 
U.S. Exchange Holdings.\58\ ISE Holdings' governing documents impose 
limits on any direct or indirect change in control of ISE Holdings, 
which are to be enforced through the creation of a statutory trust.\59\
---------------------------------------------------------------------------

    \56\ The Topaz Exchange LLC Agreement provides that ISE Holdings 
may not assign its interest in Topaz Exchange unless such assignment 
is subject to prior approval by the Commission pursuant to the rule 
filing procedure under Section 19 of the Act. See Topaz Exchange LLC 
Agreement, Section 7.1 (Assignments; Additional LLC Members).
    \57\ See supra note 13 and accompanying text.
    \58\ See supra note 14 and accompanying text.
    \59\ See Article FOURTH, Section III.(c) of the Amended and 
Restated Certificate of Incorporation of International Securities 
Exchange Holdings, Inc. (``ISE Holdings Certificate''). See infra 
notes 72-74 and 110-114 and accompanying text for a discussion of 
the statutory trust.
---------------------------------------------------------------------------

    First, ISE Holdings' governing documents prohibit any Topaz 
Exchange member (alone or together with its Related Persons \60\) from 
owning more than 20% of any class of Voting Shares of ISE Holdings.\61\ 
A second limit prohibits any other person (alone or together with its 
related persons) from owning more than 40% of any class of Voting 
Shares of ISE Holdings.\62\ A third limit prohibits any person (alone 
or together with its Related Persons) from voting or causing the voting 
of shares representing more than 20% of the voting power of the then 
outstanding Voting Shares of ISE Holdings.\63\ As described more fully 
below, if a person exceeds an ISE Holdings' ownership or voting limit, 
a majority of the capital stock of ISE Holdings that has the right by 
its terms to vote in the election of the ISE Holdings board of 
directors (``ISE Holdings Board'') or on other matters (other than 
matters affecting the rights, preferences or privileges of the capital 
stock) automatically will be transferred to a Delaware statutory trust 
(``Trust'').\64\
---------------------------------------------------------------------------

    \60\ See ISE Holdings Certificate, Article FOURTH, Section III 
for the definition of ``Related Persons.''
    \61\ See id. for the definition of ``Voting Shares.''
    \62\ See ISE Holdings Certificate, Article FOURTH, Section 
III.(a)(i).
    \63\ See ISE Holdings Certificate, Article FOURTH, Section 
III.(b). See also Second Amended and Restated Bylaws of ISE Holdings 
(``ISE Holdings Bylaws''), Article XI, Section 11.1(b).
    \64\ See ISE Holdings Certificate, Article FOURTH, Section 
III.(c). See also infra notes 72-75 and accompanying text for a 
discussion of the Trust and the related Trust Agreement.
---------------------------------------------------------------------------

    Consistent with the governance structure of other exchanges, ISE 
Holdings' Board may waive the 40% ownership limitation and the 20% 
voting restriction for persons other than Topaz Exchange members, 
subject to certain specified conditions,\65\ but such waiver will not 
be effective unless approved by the Commission.\66\
---------------------------------------------------------------------------

    \65\ The ISE Holdings Certificate allows the ISE Holdings Board 
to waive the ISE Holdings ownership and voting limits pursuant to an 
amendment to the ISE Holdings Bylaws, provided that the ISE Holdings 
Board makes certain determinations. See ISE Holdings Certificate, 
Article FOURTH, Sections III.(a)(i)(A), III.(a)(i)(B) and 
III.(b)(i). Article XI of the ISE Holdings Bylaws was adopted in 
connection with the Eurex Acquisition (see supra note 15 and 
accompanying text), when ISE LLC was the sole national securities 
exchange controlled by ISE Holdings. See Eurex Acquisition Order, 
supra note 15. Article XI, Section 11.1(b) was subsequently amended 
to apply to any Controlled National Securities Exchange, which will 
include Topaz Exchange.
    \66\ See ISE Holdings Certificate, Article FOURTH, Sections 
III.(a)(i)(A) and III.(b)(i). Article XI of the ISE Holdings Bylaws, 
which originally was adopted in connection with the Eurex 
Acquisition (see supra note 15 and accompanying text for a 
description of the Eurex Acquisition), waives the ISE Holdings 
ownership and voting limits to allow the Upstream Owners to own and 
vote all of the common stock of ISE Holdings. Article XI, Section 
11.1(b) states that, in waiving the ISE Holdings ownership and 
voting limits to permit the Upstream Owners to own and vote the 
capital stock of ISE Holdings, the ISE Holdings Board has 
determined, with respect to each Upstream Owner, that: (i) Such 
waiver will not impair the ability of ISE Holdings and each 
``Controlled National Securities Exchange'' (i.e., any national 
securities exchange or facility thereof controlled, directly or 
indirectly, by ISE Holdings, including ISE, EDGA, EDGX, and as a 
result of this Order, Topaz Exchange) to carry out their respective 
functions and responsibilities under the Act; (ii) such waiver is in 
the best interests of ISE Holdings, its stockholders, and each 
Controlled National Securities Exchange; (iii) such waiver will not 
impair the ability of the Commission to enforce the Act; (iv) 
neither the Upstream Owner nor any of its related persons is subject 
to a statutory disqualification (within the meaning of Section 
3(a)(39) of the Act, 15 U.S.C. 78c(a)(39)); and (v) neither the 
Upstream Owner nor any of its related persons is a member of such 
Controlled National Securities Exchange.
---------------------------------------------------------------------------

    The Topaz Exchange LLC Agreement and Topaz Exchange Constitution do 
not include change of control provisions that are similar to those in 
the ISE Holdings Certificate and ISE Holdings Bylaws. However, the 
Topaz Exchange LLC Agreement and the Topaz Exchange Constitution 
explicitly provide that ISE Holdings is the Sole LLC Member of Topaz 
Exchange.\67\ ISE Holdings is permitted under the Topaz Exchange LLC 
Agreement to assign all but not less than all of its interest in Topaz 
Exchange (and therefore no longer would be its sole owner), but the 
assignment of all of ISE Holdings' interest in Topaz Exchange will be 
subject to the rule filing procedures under Section 19 of the Act.\68\
---------------------------------------------------------------------------

    \67\ See Topaz Exchange LLC Agreement, Article II, Section 2.1 
and Topaz Exchange Constitution Article I, Section 1.1 (both of 
which define ``Sole LLC Member'' to mean ISE Holdings, as the sole 
member of Topaz Exchange).
    \68\ See 15 U.S.C. 78s; see also Topaz Exchange LLC Agreement, 
Article VII, Section 7.1 and Topaz Exchange Constitution, Article I, 
Section 1.1.
---------------------------------------------------------------------------

    As detailed above, ISE Holdings is owned by various Upstream 
Owners, none of which have similar ownership

[[Page 46626]]

and voting limits in their governing documents. To facilitate 
compliance with the ISE Holdings ownership and voting limits, the 
Upstream Owners have committed to take reasonable steps necessary to 
cause ISE Holdings to be in compliance with the ISE Holdings ownership 
and voting limits. These commitments are contained in the governing 
documents for U.S. Exchange Holdings \69\ and in corporate resolutions 
for the non-U.S. Upstream Owners.\70\
---------------------------------------------------------------------------

    \69\ For a U.S. Upstream Owner, the U.S. Exchange Holdings 
Certificate provides that, for so long as U.S. Exchange Holdings 
directly or indirectly controls a Controlled National Securities 
Exchange, U.S. Exchange Holdings will take reasonable steps 
necessary to cause ISE Holdings to be in compliance with the ISE 
Holdings' ownership and voting limits. See U.S. Exchange Holdings 
Certificate, Article THIRTEENTH.
    \70\ See, e.g., Form of German Parent Corporate Resolutions 
(2007 Resolution Section (4)), Exhibit B to Topaz Exchange Form 1 
Application. In its Form 1 Application, Topaz Exchange included 
these supplemental resolutions that each of the current Non-U.S. 
Upstream Owners of Topaz Exchange has adopted that, in part, 
incorporate provisions regarding the ownership and voting limits 
(``Topaz Exchange Resolutions'') in the same manner and to the same 
extent as prior corporate resolutions signed by the Non-U.S. 
Upstream Owners apply to ISE (``2007 Resolutions''). The Topaz 
Exchange Resolutions were signed by the Non-U.S. Upstream Owners and 
extend to Topaz Exchange the commitments that the then non-U.S. 
upstream owners made in the 2007 Resolutions with respect to ISE. 
For example, Topaz Exchange represented in Exhibit B to its Form 1 
Application that Deutsche B[ouml]rse AG Executive Board executed its 
corporate resolution on November 10, 2009.
    Since 2007, U.S. Exchange Holdings' governing documents and the 
non-U.S. upstream owners' 2007 Resolutions have been updated, where 
appropriate, to reflect changes in corporate structure and ownership 
as described herein. In 2010, to effect the registrations of EDGA 
and EDGX as national securities exchanges, and to maintain ISE 
Holdings' ownership and voting limits, as well as the independence 
of the regulatory function of EDGA and EDGX, the U.S. Exchange 
Holdings governing documents and the 2007 Resolutions were 
supplemented by each of the then non-U.S. upstream owners through 
supplemental resolutions (``DirectEdge Resolutions'') that applied 
the commitments of the 2007 Resolutions to EDGA and EDGX, as 
affiliates of ISE, see supra note 13, in the same manner and to the 
same extent as the 2007 Resolutions applied to ISE and the U.S. 
Exchange Holdings governing documents were updated to apply 
prospectively to any other national securities exchange that ISE 
Holdings may control, either directly or indirectly, including, but 
not limited to, ISE, EDGA and EDGX. See Securities Exchange Act 
Release No. 61698 (March 12, 2010), 75 FR 13151 (March 18, 2010) 
(File Nos. 10-194 and 10-196) (order granting the exchange 
registration of EDGA and EDGX) (``DirectEdge Exchanges Order''). The 
Commission also approved changes to U.S. Exchange Holdings' and ISE 
Holdings' governing documents to apply these governing documents to 
any prospective national securities exchange that U.S. Exchange 
Holdings or ISE Holdings, as applicable, directly or indirectly 
controlled. See Securities Exchange Act Release Nos. 59135 (December 
22, 2008), 73 FR 79954 (December 30, 2008) (``ISE Holdings Order'') 
and 61498 (February 4, 2010), 75 FR 7299 (February 18, 2010) (``U.S. 
Exchange Holdings Order'').
    In 2012, new resolutions were executed by EGD, a Swiss 
corporation, when it became a wholly-owned subsidiary of Deutsche 
B[ouml]rse, and thus a Non-U.S. Upstream Owner of ISE, EDGA and 
EDGX. See Deutsche B[ouml]rse Acquisition Order, supra note 16.
---------------------------------------------------------------------------

    Further, in connection with the Eurex Acquisition, ISE implemented 
the Trust pursuant to a Trust Agreement (``2007 Trust Agreement'') \71\ 
among ISE Holdings, U.S. Exchange Holdings, trustees (``Trustees''), 
and a Delaware trustee, which agreement has been subsequently amended 
to take into account subsequent acquisitions, including the current 
transaction.\72\
---------------------------------------------------------------------------

    \71\ The term of the Trust is perpetual, provided that ISE 
Holdings directly or indirectly controls a national securities 
exchange or a facility thereof, which would include Topaz Exchange.
    \72\ See Eurex Acquisition Order, supra note 15, at Section 
II.C., for a more detailed description of the Trust. By its terms, 
the 2007 Trust Agreement related solely to ISE Holdings' ownership 
of ISE LLC, and not to any other national securities exchange that 
ISE Holdings might control, directly or indirectly. In 2010, the 
Commission approved proposed rule changes that revised the 2007 
Trust Agreement to replace references to ISE with references to any 
Controlled National Securities Exchange (the 2007 Trust Agreement, 
as thereby amended, is referred to herein as the ``2009 Trust 
Agreement''). See ISE Holdings Order and U.S. Exchange Holdings 
Order, supra note 70; see also DirectEdge Exchanges Order, supra 
note 70; 2009 Trust Agreement, Articles I and II, Sections 1.1 and 
2.6.
    Thus, the 2009 Trust Agreement will apply to Topaz Exchange upon 
the Commission's granting its registration as a national securities 
exchange because it is controlled directly by ISE Holdings. Except 
for the expanded scope, the 2009 Trust Agreement was substantially 
similar to the 2007 Trust Agreement. In 2012, the Commission 
approved a proposed rule change that revised the 2009 Trust 
Agreement to replace references to a former owner, SIX, to the new 
owner, EGD (the 2009 Trust Agreement, as thereby amended, is 
referred to herein as the ``2012 Trust Agreement''). See Deutsche 
B[ouml]rse Acquisition Order, supra note 16, for more detailed 
information on the addition of EGD as a Non-U.S. Upstream Owner of 
ISE, EDGA, and EDGX. Except for reflecting a new Upstream Owner of 
ISE Holdings, the 2012 Trust Agreement was substantially similar to 
the 2009 Trust Agreement.
---------------------------------------------------------------------------

    The current agreement (``2012 Trust Agreement'') serves, in part, 
to effectuate the ownership and voting limits for ISE Holdings in the 
event that a person obtains an ownership or voting interest in excess 
of the limits established in the ISE Holdings Certificate without prior 
Commission approval. To accomplish that purpose, for as long as ISE 
Holdings controls, directly or indirectly, a national securities 
exchange, including Topaz Exchange, the Trust would accept, hold and 
dispose of Trust Shares \73\ on the terms and subject to the conditions 
set forth therein.\74\ Specifically, if any person's ownership 
percentage exceeds the ownership limits or any person's voting control 
percentage exceeds the voting limits without Commission approval, the 
Excess Shares will be transferred automatically to the Trust pursuant 
to the terms prescribed in the ISE Holdings Certificate.\75\ The Trust 
then would accept the Excess Shares and hold them for the benefit of 
the trust beneficiary, U.S. Exchange Holdings, who has the right to 
reacquire the Excess Shares either when a person no longer exceeds the 
ownership or voting limits or when such excess ownership percentage or 
voting control percentage is approved by the Commission in accordance 
with ISE Holdings Certificate.\76\
---------------------------------------------------------------------------

    \73\ Under the Trust, 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 the ownership and 
voting limits pursuant to Article FOURTH of the ISE Holdings 
Certificate, for example, through 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. Under the Trust, 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. 
See infra Section II.C.2.b for further discussion of the Call 
Option.
    \74\ See 2012 Trust Agreement, Article IV, Section 4.1; see also 
ISE Holdings Certificate, Article FOURTH, Section III.(c); Eurex 
Acquisition Order, supra note 15, at 72 FR 71982 n.37 and 
accompanying text.
    \75\ See id.
    \76\ See 2012 Trust Agreement, Article IV, Section 4.1(f). In 
addition, as discussed in Section II.C.2.b below, the Trust also may 
accept, hold and dispose of Trust Shares in connection with the Call 
Option. Section 4.2(h) of the 2012 Trust Agreement governs when the 
Trustees can transfer Deposited Shares in connection with the Call 
Option. Section 4.3(a) of the 2012 Trust Agreement further permits 
the Trustees, upon receipt of written instructions from the Trust 
Beneficiary, to sell Trust Shares to a person or persons whose 
ownership percentage or voting control percentage will not violate 
the ownership or voting limits.
---------------------------------------------------------------------------

    Although ISE Holdings is not independently responsible for 
regulation of Topaz Exchange, its activities with respect to the 
operation of Topaz Exchange must be consistent with, and must not 
interfere with, the self-regulatory obligations of Topaz Exchange.\77\ 
As described above, the provisions applicable to direct and indirect 
changes in control of ISE Holdings and Topaz Exchange, as well as the 
voting limitation, are designed to help prevent any owner of ISE 
Holdings from exercising undue influence or control over the operation 
of Topaz Exchange and to help assure that Topaz Exchange is able to 
effectively carry out its regulatory obligations under the Act. In 
addition, these limitations are designed to address the conflicts of 
interests that might result from a member of a national securities 
exchange owning interests in the

[[Page 46627]]

exchange. As the Commission has noted in the past, however, a member's 
interest in an exchange, including an entity that controls an exchange, 
could become so large as to cast doubts on whether the exchange may 
fairly and objectively exercise its self-regulatory responsibilities 
with respect to such member.\78\ A member that is a controlling 
shareholder of an exchange could seek to exercise that controlling 
influence by directing the exchange to refrain from, or the exchange 
may hesitate to, diligently monitor and conduct surveillance of the 
member's conduct or diligently enforce the exchange's rules and the 
federal securities laws with respect to conduct by the member that 
violates such provisions. As such, these requirements are designed to 
minimize the potential that a person or entity can improperly interfere 
with or restrict the ability of Topaz Exchange to effectively carry out 
its regulatory oversight responsibilities under the Act.
---------------------------------------------------------------------------

    \77\ See also infra Section II.C.2. (Regulatory Independence).
    \78\ See, e.g., DirectEdge Exchanges Order, supra note 70, and 
BATS Order, supra note 29; see also MIAX Order, supra note 30.
---------------------------------------------------------------------------

    The Commission believes that Topaz Exchange's and ISE Holdings' 
proposed ownership and voting limitation provisions, coupled with the 
provisions in U.S. Exchange Holdings' governing documents, the Topaz 
Exchange Resolutions and the 2012 Trust Agreement described above,\79\ 
are consistent with the Act, including Section 6(b)(1), which requires, 
in part, an exchange to be so organized and have the capacity to carry 
out the purposes of the Act.\80\ In particular, these requirements are 
designed to minimize the potential that a person could improperly 
interfere with or restrict the ability of the Commission or Topaz 
Exchange to effectively carry out their regulatory oversight 
responsibilities under the Act.\81\
---------------------------------------------------------------------------

    \79\ See supra notes 69-70, and accompanying text.
    \80\ 15 U.S.C. 78f(b)(1).
    \81\ In addition, the 2012 Trust Agreement, like the 2007 and 
2009 Trust Agreements, is consistent with the provisions that other 
entities that directly or indirectly own or control a SRO have 
instituted and that have been approved by the Commission. See, e.g., 
Securities Exchange Act Release No. 55293 (February 14, 2007), 72 FR 
8033 (February 22, 2007) (File No. SR-NYSE-2006-120) (order relating 
to the combination between NYSE Group, Inc. and Euronext N.V.). See 
also Eurex Acquisition Order, supra note 15, at 72 FR 71986 n.111.
---------------------------------------------------------------------------

2. Regulatory Independence and Oversight
a. ISE Holdings
    Although ISE Holdings itself will not itself carry out regulatory 
functions, its activities with respect to the operation of Topaz 
Exchange must be consistent with, and not interfere with, the self-
regulatory obligations of Topaz Exchange.\82\ In this regard, Topaz 
Exchange and ISE Holdings' respective corporate documents include 
certain provisions that are designed to maintain the independence of 
the Topaz Exchange's self-regulatory function.\83\ These provisions are 
substantially similar to those included in the governing documents of 
other exchanges that recently have been granted registration.\84\ 
Specifically:
---------------------------------------------------------------------------

    \82\ See, e.g., BOX Order, supra note 39, and DirectEdge 
Exchanges Order, supra note 70.
    \83\ See supra note 66, noting that the ISE Holdings Certificate 
and the ISE Holdings Bylaws were revised in 2010 to cover any 
Controlled National Securities Exchange, which would include Topaz 
Exchange.
    \84\ See, e.g., BOX Order, supra note 39, and MIAX Order, supra 
note 30.
---------------------------------------------------------------------------

     The directors, officers, and employees of ISE Holdings 
must give due regard to the preservation of the independence of the 
self-regulatory function of Topaz Exchange and must not take actions 
that would interfere with the effectuation of decisions by the Topaz 
Exchange Board relating to its regulatory functions (including 
disciplinary matters) or that would adversely affect the ability of 
Topaz Exchange to carry out its responsibilities under the Act.\85\
---------------------------------------------------------------------------

    \85\ See ISE Holdings Bylaws, Article I, Section 1.5. Similarly, 
Article V, Section 5.1(b) of the Topaz Exchange LLC Agreement 
requires each Topaz Exchange Board director to take into 
consideration the effect that his or her actions would have on the 
ability of Topaz Exchange to carry out its responsibilities under 
the Act and on the ability of Topaz Exchange to engage in conduct 
that fosters and does not interfere with Topaz Exchange'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 or assist in the removal of impediments to or 
perfection of the mechanisms for a free and open market and a 
national market system; and in general to protect investors and the 
public interest.
---------------------------------------------------------------------------

     ISE Holdings must comply with federal securities laws and 
the rules and regulations promulgated thereunder, and must cooperate 
with Topaz Exchange and the Commission pursuant to, and to the extent 
of, their respective regulatory authority. In addition, ISE Holdings' 
officers, directors, and employees must comply with federal securities 
laws and the rules and regulations thereunder and agree to cooperate 
with Topaz Exchange and the Commission pursuant to their respective 
regulatory authority.\86\
---------------------------------------------------------------------------

    \86\ See ISE Holdings Certificate, Article TENTH. ISE Holdings 
also shall take reasonable steps necessary to cause its agents to 
cooperate with Topaz Exchange and the Commission pursuant to their 
respective regulatory authority. ISE Holdings Certificate, Article 
THIRTEENTH.
---------------------------------------------------------------------------

     ISE Holdings, and its officers, directors, employees, and 
agents are deemed to irrevocably submit to the jurisdiction of the U.S. 
federal courts, the Commission, and Topaz Exchange, for purposes of any 
suit, action, or proceeding pursuant to U.S. federal securities laws, 
and the rules and regulations thereunder, arising out of, or relating 
to, Topaz Exchange's activities.\87\
---------------------------------------------------------------------------

    \87\ See ISE Holdings Bylaws, Article I, Section 1.4.
---------------------------------------------------------------------------

     All books and records of Topaz Exchange containing 
confidential information pertaining to the self-regulatory function of 
Topaz Exchange (including but not limited to confidential information 
regarding disciplinary matters, trading data, trading practices and 
audit information) shall be retained in confidence by Topaz Exchange 
and its officers, directors, employees and agents and will not be used 
by Topaz Exchange for any commercial purpose and shall not be made 
available to persons other than those officers, directors, employees 
and agents that have a reasonable need to know the contents 
thereof.\88\
---------------------------------------------------------------------------

    \88\ See Topaz Exchange LLC Agreement, Article VI, Section 
4.1(b) and ISE Holdings Certificate, Article ELEVENTH. ISE Holdings 
LLC Agreement also provides that all books and records of Topaz 
Exchange reflecting confidential information pertaining to the self-
regulatory function of Topaz Exchange will be subject to 
confidentiality restrictions. See ISE Holdings Certificate, Article 
ELEVENTH. The requirement to keep such information confidential 
shall not limit or impede the Commission's ability to access and 
examine such information or limit or impede the ability of officers, 
directors, employees, or agents of ISE Holdings to disclose such 
information to the Commission. See id.
---------------------------------------------------------------------------

     The books and records of Topaz Exchange and ISE Holdings 
must be maintained in the United States \89\ and, to the extent they 
are related to the operation or administration of Topaz Exchange, ISE 
Holdings books and records will be subject at all times to inspection 
and copying by the Commission.\90\
---------------------------------------------------------------------------

    \89\ See Topaz Exchange LLC Agreement, Article IV, Section 4.1 
and ISE Holdings Bylaws, Article I, Section 1.3.
    \90\ See ISE Holdings Certificate, Article TWELFTH.
---------------------------------------------------------------------------

     Furthermore, to the extent that they are related to the 
activities of Topaz Exchange, the books, records, premises, officers, 
directors, and employees of ISE Holdings will be deemed to be the 
books, records, premises, officers, directors, and employees of Topaz 
Exchange, for purposes of, and subject to oversight pursuant to, the 
Act.\91\
---------------------------------------------------------------------------

    \91\ See id.
---------------------------------------------------------------------------

     ISE Holdings will take necessary steps to cause its 
officers, directors, and employees, prior to accepting a position as an 
officer, director, or employee (as

[[Page 46628]]

applicable) to consent in writing to the applicability of provisions 
regarding books and records, confidentiality, jurisdiction, and 
regulatory obligations, with respect to their activities related to 
Topaz Exchange.\92\
---------------------------------------------------------------------------

    \92\ See ISE Holdings Bylaws, Article I, Section 1.6.
---------------------------------------------------------------------------

     ISE Holdings Certificate and ISE Holdings Bylaws require 
that, so long as ISE Holdings controls Topaz Exchange, any changes to 
those documents be submitted to the Topaz Exchange Board, and, if such 
change is required to be filed with, or filed with and approved by, the 
Commission before it may be effective pursuant to Section 19 of the Act 
and the rules thereunder, such change shall not be effective until 
filed with, or filed with and approved by, the Commission.\93\
---------------------------------------------------------------------------

    \93\ See ISE Holdings Certificate, Article FOURTEENTH; and ISE 
Holdings Bylaws, Article X; see also supra notes 67-68 and 
accompanying text discussing a similar provision for Topaz Exchange.
---------------------------------------------------------------------------

b. Upstream Owners
    Although the Upstream Owners will not carry out any regulatory 
functions, the activities of each of the Upstream Owners with respect 
to the operation of Topaz Exchange must be consistent with, and not 
interfere with, the self-regulatory obligations of Topaz Exchange. The 
2007 Resolutions, as supplemented by the supplemental Resolutions for 
Topaz Exchange, the U.S. Exchange Holdings Certificate, and the U.S. 
Exchange Holdings Bylaws include certain provisions that are designed 
to maintain the independence of the self-regulatory function of Topaz 
Exchange, enable Topaz Exchange to operate in a manner that complies 
with the U.S. federal securities laws, including the objectives and 
requirements of Sections 6(b) and 19(g) of the Act,\94\ and facilitate 
the ability of Topaz Exchange, and the Commission to fulfill their 
regulatory and oversight obligations under the Act. Specifically:
---------------------------------------------------------------------------

    \94\ 15 U.S.C. 78f(b) and 15 U.S.C. 78s(g).
---------------------------------------------------------------------------

     Each such Non-U.S. Upstream Owner and U.S. Exchange 
Holdings will comply with the U.S. federal securities laws and the 
rules and regulations thereunder and cooperate with the Commission and 
Topaz Exchange.\95\ Also, each board member, officer, and employee of 
the Non-U.S. Upstream Owners, and of U.S. Exchange Holdings, in 
discharging his or her responsibilities, must comply with the U.S. 
federal securities laws and the rules and regulations thereunder, and 
must cooperate with the Commission and Topaz Exchange.\96\
---------------------------------------------------------------------------

    \95\ See, e.g., Form of German Parent Corporate Resolutions 
(2007 Resolution Section (1) and Topaz Exchange Resolution Section 
(2)(a)); and U.S. Exchange Holdings Certificate, Article ELEVENTH.
    \96\ See, e.g., Form of German Parent Corporate Resolutions 
(2007 Resolution Sections (7)(a) and (8)(a) and Topaz Exchange 
Resolution Sections (2)(b) and (2)(c)); U.S. Exchange Holdings 
Certificate, Article TENTH. The Resolutions also provide that each 
Non-U.S. Upstream Owner will take reasonable steps necessary to 
cause each person who subsequently becomes a board member of the 
Non-U.S. Upstream Owner to agree in writing to certain matters 
included in the Resolutions. See, e.g., Form of German Parent 
Corporate Resolutions (2007 Resolution Section (7) and Topaz 
Exchange Resolution Section (2)(b)).
---------------------------------------------------------------------------

     In discharging his or her responsibilities as a board 
member of a Non-U.S. Upstream Owner, or of U.S. Exchange Holdings, each 
such member must, to the fullest extent permitted by applicable law, 
take into consideration the effect that the actions of the Upstream 
Owner or U.S. Exchange Holdings, as applicable, will have on the 
ability of Topaz Exchange to carry out its responsibilities under the 
Act.\97\ In addition, each of the Non-U.S. Upstream Owners and U.S. 
Exchange Holdings, and their board members, officers, and employees, 
must give due regard to the preservation of the independence of the 
self-regulatory function of Topaz Exchange (or in the case of the Non-
U.S. Upstream Owners, that they will take reasonable steps necessary to 
cause their officers and employees involved in the activities of Topaz 
Exchange to give due regard to preserving the independence of the self-
regulatory functions of Topaz Exchange).\98\
---------------------------------------------------------------------------

    \97\ See, e.g., Form of German Parent Corporate Resolutions 
(2007 Resolution Section (7)(f) and Topaz Exchange Resolution 
Section (2)(b)); and U.S. Exchange Holdings Certificate, Article 
TENTH.
    \98\ See, e.g., Form of German Parent Corporate Resolutions 
(2007 Resolution Sections (5), (7)(d), and (8)(d) and Topaz Exchange 
Resolution Section (2)); and U.S. Exchange Holdings Certificate, 
Article TWELFTH.
---------------------------------------------------------------------------

     The Non-U.S. Upstream Owners (along with their respective 
board members, officers, and employees), and U.S. Exchange Holdings 
agree to keep confidential, to the fullest extent permitted by 
applicable law, all confidential information pertaining to the self-
regulatory function of Topaz Exchange, including, but not limited to, 
confidential information regarding disciplinary matters, trading data, 
trading practices and audit information, contained in the books and 
records of Topaz Exchange and not use such information for any 
commercial purposes.\99\
---------------------------------------------------------------------------

    \99\ See, e.g., Form of German Parent Corporate Resolutions 
(2007 Resolution Sections (6), (7)(e) and (8)(e) and Topaz Exchange 
Resolution Section (2)); and U.S. Exchange Holdings Certificate, 
Article FOURTEENTH.
     The Commission believes that any non-regulatory use of such 
information would be for a commercial purpose. See DirectEdge 
Exchanges Order, supra note 70, at 75 FR 13155 n.53.
---------------------------------------------------------------------------

     The books and records of the Non-U.S. Upstream Owners 
related to the activities of Topaz Exchange must at all times be made 
available for, and the books and records of U.S. Exchange Holdings must 
be subject at all times to, inspection and copying by the Commission 
and Topaz Exchange.\100\
---------------------------------------------------------------------------

    \100\ See, e.g., Form of German Parent Corporate Resolutions 
(2007 Resolution Section (3) and Topaz Exchange Resolution Section 
(2)(a)); and U.S. Exchange Holdings Certificate, Article FIFTEENTH. 
See infra Section II.C.2.c for a discussion of the 2009 Procedure 
through which the Swiss companies would make available their books 
and records relating to the activities of the Topaz Exchange.
---------------------------------------------------------------------------

     Books and records of U.S. Exchange Holdings related to the 
activities of Topaz Exchange will be maintained within the United 
States.\101\
---------------------------------------------------------------------------

    \101\ See U.S. Exchange Holdings Certificate, Article FIFTEENTH.
---------------------------------------------------------------------------

     For so long as each of the Non-U.S. Upstream Owners or 
U.S. Exchange Holdings directly or indirectly controls Topaz Exchange, 
the books, records, officers, directors (or equivalent), and employees 
of each of the Non-U.S. Upstream Owners or of U.S. Exchange Holdings 
will be deemed to be the books, records, officers, directors, and 
employees of Topaz Exchange, as applicable.\102\ And, for so long as 
U.S. Exchange Holdings directly or indirectly controls Topaz Exchange, 
the premises of U.S. Exchange Holdings will be deemed to be the 
premises of Topaz Exchange.\103\
---------------------------------------------------------------------------

    \102\ See, e.g., Form of German Parent Corporate Resolutions 
(2007 Resolution Sections (3) and (8)(c) and Topaz Exchange 
Resolution Sections (2)(a) and (2)(c)); and U.S. Exchange Holdings 
Certificate, Article FIFTEENTH.
    \103\ See U.S. Exchange Holdings Certificate, Article FIFTEENTH.
---------------------------------------------------------------------------

     To the extent involved in the activities of Topaz 
Exchange, each of the Non-U.S. Upstream Owners, its board members, 
officers, and employees, irrevocably submit to the jurisdiction of the 
U.S. federal courts and the Commission for purposes of any suit, action 
or proceeding arising out of, or relating to, the activities of Topaz 
Exchange to the extent such board member, officer or employee are 
involved in the activities of Topaz Exchange.\104\ Likewise, U.S. 
Exchange Holdings, its officers, directors, and employees whose 
principal place of business and residence is outside of the United 
States, to the extent such director, officer, or employee is involved 
in the activities of Topaz Exchange, irrevocably submit to the

[[Page 46629]]

jurisdiction of the U.S. federal courts and the Commission for purposes 
of any suit, action or proceeding pursuant to the U.S. federal 
securities laws, and the rules or regulations thereunder, commended or 
initiated by the Commission arising out of, or relating to, the 
activities of Topaz Exchange.\105\
---------------------------------------------------------------------------

    \104\ See, e.g., Form of German Parent Corporate Resolutions 
(2007 Resolution Sections (2), (7)(b), and (8)(b) and Topaz Exchange 
Resolution Section (2)).
    \105\ See U.S. Exchange Holdings Bylaws, Article VI, Section 16.
---------------------------------------------------------------------------

     The 2007 Resolutions, as supplemented by the Topaz 
Exchange Resolutions, and the U.S. Exchange Holdings Certificate and 
the U.S. Exchange Holdings Bylaws each require that any change to the 
applicable document (including any action by the Non-U.S. Upstream 
Owners that would have the effect of amending or repealing the Topaz 
Exchange Resolutions or the 2007 Resolutions) must be submitted to the 
Topaz Exchange Board.\106\ If such change must be filed with, or filed 
with and approved by, the Commission under Section 19 of the Act,\107\ 
and the rules thereunder, then such change shall not be effective until 
filed with, or filed with and approved by, the Commission.\108\
---------------------------------------------------------------------------

    \106\ See, e.g., Form of German Parent Corporate Resolutions 
(Topaz Exchange Resolution Section (3)); U.S. Exchange Holdings 
Certificate, Article SIXTEENTH; and U.S. Exchange Holdings Bylaws, 
Article VI, Section 9.
    \107\ 15 U.S.C. 78s.
    \108\ See, e.g., Form of German Parent Corporate Resolutions 
(Topaz Exchange Resolution Section (3)); U.S. Exchange Holdings 
Certificate, Article SIXTEENTH; and U.S. Exchange Holdings Bylaws, 
Article VI, Section 9. The requirement to submit changes to the 
Topaz Exchange Board endures for as long as U.S. Exchange Holdings 
directly or indirectly controls Topaz Exchange. See U.S. Exchange 
Holdings Bylaws, Article VI, Section 9.
---------------------------------------------------------------------------

    The 2012 Trust Agreement, in addition to enforcing the ownership 
and voting limits,\109\ also serves to effectuate compliance with the 
other commitments made under the Topaz Exchange Resolutions, which 
incorporate the 2007 Resolutions. To accomplish that purpose, the Trust 
would determine whether a Material Compliance Event \110\ has occurred 
or is continuing. The Trust would determine whether the occurrence and 
continuation of a Material Compliance Event requires the exercise of 
the Call Option.\111\ The Trust holds a Call Option over the capital 
stock of ISE Holdings that may be exercised if a Material Compliance 
Event has occurred and continues to be in effect, and upon such 
exercise, the Trust Beneficiary \112\ and ISE Holdings, as applicable, 
will take such actions as are necessary to transfer, or cause the 
transfer to the Trust of a majority of the Voting Shares then 
outstanding.\113\ The Trust will transfer Deposited Shares from the 
Trust back to the Trust Beneficiary, as provided in Section 4.2(h) 
therein, only if no Material Compliance Event is continuing or, 
notwithstanding its continuation, the Trustees determine that the 
retention of the Deposited Shares could not reasonably be expected to 
address the continuing Material Compliance Event, provided that the 
determination is filed with, or filed with and approved by, the 
Commission.\114\
---------------------------------------------------------------------------

    \109\ See supra notes 61-63 and 73-76 and accompanying text for 
a discussion of the ownership and voting limits.
    \110\ Under the 2012 Trust Agreement, a ``Material Compliance 
Event'' is 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 its respective 
commitments under the Resolutions adopted by the respective Non-U.S. 
Upstream Owners, in any material respect. See 2012 Trust Agreement, 
Article I, Section 1.1.
    \111\ See supra note 73.
    \112\ Under the Trust, the term ``Trust Beneficiary'' means U.S. 
Exchange Holdings.
    \113\ See 2012 Trust Agreement, Article IV, Section 4.2. 
Specifically, if a Material Compliance Event occurs and continues to 
be in effect, the Trustees must take certain actions, including, 
after a specified cure period, the exercise of a Call Option for a 
transfer of the majority of capital stock of ISE Holdings that has 
the right by its terms to vote in the election of the ISE Holdings 
Board or on other matters.
    \114\ See 2012 Trust Agreement, Article IV, Section 4.2.
---------------------------------------------------------------------------

    The Commission believes that the provisions discussed above in 
Sections II.C.2.a. and b., which are designed to help maintain the 
independence of Topaz Exchange's regulatory function and help 
facilitate the ability of Topaz Exchange to carry out its regulatory 
responsibilities and operate in a manner consistent with the Act, are 
appropriate and consistent with the requirements of the Act, 
particularly with Section 6(b)(1), which requires, in part, an exchange 
to be so organized and have the capacity to carry out the purposes of 
the Act.\115\ Whether Topaz Exchange operates in compliance with the 
Act, however, depends on how it and ISE Holdings in practice implement 
the governance and other provisions that are the subject of this 
Order.\116\
---------------------------------------------------------------------------

    \115\ 15 U.S.C. 78f(b)(1).
    \116\ The Commission has noted that it is reviewing the various 
standards and processes it uses to facilitate the registration of 
national securities exchanges and other entities required to 
register with the Commission and may issue a concept release 
designed to collect relevant information to evaluate aspects of 
these registration standards and processes, including the policy 
objectives of registration, and how best to achieve those policy 
objectives through registration and other means, and the relative 
benefits and costs of the various means available. See Securities 
Exchange Act Release No. 65543 (October 12, 2011), 76 FR 65784, 
65786 fn. 13 (October 24, 2011).
---------------------------------------------------------------------------

    Further, Section 19(h)(1) of the Act \117\ provides the Commission 
with the authority ``to suspend for a period not exceeding twelve 
months or revoke the registration of [an SRO], or to censure or impose 
limitations upon the activities, functions, and operations of [an SRO], 
if [the Commission] finds, on the record after notice and opportunity 
for hearing, that [the SRO] has violated or is unable to comply with 
any provision of [the Act], the rules or regulations thereunder, or its 
own rules or without reasonable justification or excuse has failed to 
enforce compliance'' with any such provision by its members (including 
associated persons thereof).\118\ If Commission staff were to find, or 
become aware of, through staff review and inspection or otherwise, 
facts indicating any violations of the Act, including without 
limitation Sections 6(b)(1) \119\ and 19(g)(1),\120\ these matters 
could provide the basis for a disciplinary proceeding under Section 
19(h)(1) of the Act.\121\
---------------------------------------------------------------------------

    \117\ See 15 U.S.C. 78s(h)(1).
    \118\ See id.
    \119\ See 15 U.S.C. 78f(b)(1)
    \120\ See 15 U.S.C. 78s(g)(1).
    \121\ See 15 U.S.C. 78s(h)(1).
---------------------------------------------------------------------------

    Even in the absence of the provisions described above, under 
Section 20(a) of the Act,\122\ any person with a controlling interest 
in Topaz Exchange would be jointly and severally liable with and to the 
same extent that Topaz Exchange is liable under any provision of the 
Act, unless the controlling person acted in good faith and did not 
directly or indirectly induce the act or acts constituting the 
violation or cause of action. In addition, Section 20(e) of the Act) 
\123\ creates aiding and abetting liability for any person who 
knowingly provides substantial assistance to another person in 
violation of any provision of the Act or rule thereunder. Further, 
Section 21C of the Act authorizes the Commission to enter a cease-and-
desist order against any person who has been ``a cause of'' a violation 
of any provision of the Act through an act or omission that the person 
knew or should have known would contribute to the violation.\124\ These 
provisions are applicable to all entities controlling Topaz Exchange, 
including the Trust, ISE Holdings, U.S. Exchange Holdings, and the Non-
U.S. Upstream Owners.
---------------------------------------------------------------------------

    \122\ See 15 U.S.C. 78t(a).
    \123\ See 15 U.S.C. 78t(e).
    \124\ See 15 U.S.C. 78u-3(a).
---------------------------------------------------------------------------

c. Swiss Resolutions and Procedure With FINMA
    As discussed more fully in the Eurex Acquisition Order,\125\ Swiss 
law is designed to protect Swiss sovereignty concerns and prohibits the 
direct delivery of information from the Swiss

[[Page 46630]]

owners of Topaz Exchange to the Commission or Topaz Exchange with 
respect to the activities of Topaz Exchange. In light of the Swiss 
penal code,\126\ the Swiss companies agreed to make their books and 
records relating to the activities of ISE, EDGA and EDGX available for 
inspection and copying by the Commission through FINMA.\127\ The Swiss 
companies made the same agreement in connection with the Eurex 
Acquisition, and agreed to do so again with respect to the Topaz 
Exchange prior to the grant of registration to Topaz Exchange as a 
national securities exchange.\128\ In November 2009, the Commission and 
FINMA both approved and signed the Undertaking Relating to the 
Oversight of Affiliated Markets (``2009 Undertaking'') pursuant to 
which FINMA undertook to serve as a conduit for the delivery of 
information between the Commission and the Swiss owners of ISE Holdings 
(``Procedure'') \129\ for any national securities exchange registered 
under Section 6 of the Act that ISE Holdings controls or would, in the 
future, control, directly or indirectly.\130\
---------------------------------------------------------------------------

    \125\ See supra note 15.
    \126\ Art. 271 of the Swiss penal code, ``Prohibited acts for a 
foreign state,'' states, in part: ``Whoever, without being 
authorized, performs acts for a foreign state on Swiss territory 
that are reserved to an authority or an official, whoever performs 
such acts for a foreign party or another foreign organization, 
whoever aids and abets such acts, shall be punished with 
imprisonment and, in serious cases, sentenced to the penitentiary.''
    \127\ In 2007, the Swiss Federal Banking Commission (``SFBC'') 
(the predecessor to FINMA) undertook to serve as a conduit for the 
delivery of information between the Commission and the Swiss 
companies relating to the activities of ISE. On January 1, 2009, the 
SFBC, the Swiss Federal Office of Private Insurance and the Swiss 
Anti-Money Laundering Control Authority merged to form FINMA, a new 
consolidated financial regulator for Switzerland. In 2009, a new 
undertaking was expanded to cover EDGA and EDGX and any future U.S. 
exchanges controlled by ISE Holdings. The 2009 undertaking became 
effective after the Commission approved the Form 1 applications of 
EDGA and EDGX. See DirectEdge Exchanges Order, supra note 70. The 
2009 undertaking covers all U.S. markets that currently are, or in 
the future may be, controlled by ISE Holdings. Accordingly, by its 
terms, the new undertaking from 2009 also would apply to the 
activities of Topaz Exchange upon its registration. See http://www.sec.gov/about/offices/oia/oia_bilateral/switzerland_sfbc.pdf.
    \128\ See supra note 15. The forms of these agreements are 
included as part of the Form 1 Application. Form of Swiss Parent 
Corporate Resolutions; see also Form of EGD Corporate Resolutions. 
Based on the representation of Topaz Exchange in the submission of 
its Form 1 Application to the Commission, the resolutions were 
signed by the respective Swiss companies prior to the grant of 
registration by the Commission. See Exhibit B to Topaz Exchange Form 
1 Application and Amendment No. 3.
    \129\ Where necessitated by Swiss law, the Procedure provides: 
(1) If the Commission makes a request to any of the Swiss Upstream 
Owners for information related to the activities of a U.S. Market, 
including books and records related to the activities of such U.S. 
Market, FINMA shall deliver to the Commission without delay any 
responsive information provided to FINMA by the Swiss Upstream 
Owners; (2) written requests for information, including books and 
records, related to the activities of a U.S. Market shall be made by 
the Commission directly to the Swiss Upstream Owners, and FINMA 
would be copied on any such requests; and (3) a FINMA staff member 
shall participate in any oral exchanges between the Commission and 
any of the Swiss Upstream Owners. As used in the 2009 Undertaking, 
``U.S. Markets'' means ISE, EDGX, EDGA, and any national securities 
exchange registered under Section 6 of the Act that ISE Holdings 
may, in the future, control, directly or indirectly. See 2009 
Undertaking, paragraph 6.
    Notwithstanding this Procedure, the Swiss Upstream Owners remain 
fully responsible for meeting all of their obligations as owners of 
a U.S. securities exchange, to be set forth in binding corporate 
resolutions.
    \130\ FINMA serves as a conduit for the delivery of information 
and for participation in oral exchanges between the Commission and 
the Swiss companies, and would serve in that capacity for Topaz 
Exchange. The 2009 Undertaking explicitly states that it covers 
changes in Swiss companies that become future direct or indirect 
owners of the U.S. Markets. Specifically, when SIX Swiss Exchange 
AG's transferred its interest to the newly formed Swiss corporation, 
EGD, EGD was covered by the 2009 Undertaking. See supra note 16.
---------------------------------------------------------------------------

    Subject to the terms and conditions relating to the Procedure, 
coupled with the fact that under the Topaz Exchange LLC Agreement, all 
trading records of Topaz Exchange must be maintained in the United 
States,\131\ the Commission believes that the Procedure should not 
result in a level of access materially different from that agreed to by 
other entities that control U.S. national securities exchanges.\132\
---------------------------------------------------------------------------

    \131\ See Topaz Exchange LLC Agreement, ARTICLE IV, Section 4.1 
(Books and Records).
    \132\ See Eurex Acquisition Order, supra note 15, at 72 FR 71984 
n.66 and accompanying text; see also DirectEdge Exchanges Order, 
supra note 70. If a Non-U.S. Upstream Owner fails to make its books 
and record relating to the operation of Topaz Exchange available to 
the Commission, the Commission could bring an action under, among 
other provisions, Section 17 of the Act, 15 U.S.C. 78q, and Rule 
17a-1(b) thereunder, 17 CFR 240.17a-1(b), against Topaz Exchange 
pursuant to Section 19(h) of the Act, 15 U.S.C. 78s(h).
---------------------------------------------------------------------------

3. Regulation of Topaz Exchange
    As a prerequisite to the Commission's granting of an exchange's 
application for registration, an exchange must be so organized and have 
the capacity to carry out the purposes of the Act.\133\ Specifically, 
an exchange must be able to enforce compliance by its members, and 
persons associated with its members, with the Act and the rules and 
regulations thereunder and the rules of the exchange.\134\ The 
discussion below summarizes how Topaz Exchange proposes to structure 
and conduct its regulatory operations.
---------------------------------------------------------------------------

    \133\ See Section 6(b)(1) of the Act, 15 U.S.C. 78f(b)(1).
    \134\ See id. See also Section 19(g) of the Act, 15 U.S.C. 
78s(g).
---------------------------------------------------------------------------

a. Corporate Governance Committee and Finance and Audit Committee
    Topaz Exchange will have a Chief Regulatory Officer (``CRO'') with 
general responsibility for supervision of the regulatory operations of 
Topaz Exchange. The CRO will report to the Corporate Governance 
Committee\135\ and to the President/Chief Executive Officer, although 
the Topaz Exchange Board would retain the power to call the CRO to 
report directly to the Board as needed, and the CRO may call special 
meetings of the Board, as necessary.\136\ The Corporate Governance 
Committee will meet regularly with the CRO to review regulatory 
matters.
---------------------------------------------------------------------------

    \135\ The Corporate Governance Committee will consist of at 
least three directors, all of whom must be Non-Industry Directors. 
See Topaz Exchange Constitution, Article V, Section 5.4.
    \136\ See Exhibit L to Topaz Exchange Form 1 Application.
---------------------------------------------------------------------------

    The Corporate Governance Committee will monitor the regulatory 
program for sufficiency, effectiveness and independence, and will 
oversee trade practices and market surveillance, audits, examinations 
and other regulatory responsibilities with respect to members and the 
conduct of investigations. The Corporate Governance Committee also will 
supervise the CRO; will receive an annual report from the CRO assessing 
Topaz Exchange's self-regulatory program for the Board; will recommend 
changes that would ensure fair and effective regulation; and will 
review regulatory proposals and advise the Board as to whether and how 
such changes may impact regulation. The Corporate Governance Committee 
will review annually the regulatory budget and specifically inquire 
into the adequacy of the resources available in the budget for 
regulatory activities. The Corporate Governance Committee will 
authorize unbudgeted expenditures for necessary regulatory expenses. In 
addition, the Finance and Audit Committee will provide oversight over 
the systems of internal controls established by management and the 
Board and the Exchange's regulatory and compliance process.\137\
---------------------------------------------------------------------------

    \137\ See Exhibit L to Topaz Exchange Form 1 Application. See 
also Amendment No. 3.
---------------------------------------------------------------------------

    The Compensation Committee will set compensation for the CRO. The 
Corporate Governance Committee, in its sole discretion, will make 
hiring and termination decisions with respect to the CRO, in each case 
taking into consideration any recommendations made by the President/
Chief Executive Officer. The Corporate Governance Committee will be 
informed about the

[[Page 46631]]

compensation of the CRO, including factors affecting changes thereto.
b. Regulatory Funding
    To help assure the Commission that it has and will continue to have 
adequate funding to be able to meet its responsibilities under the Act, 
Topaz Exchange represented that, prior to commencing operations as a 
national securities exchange, ISE Holdings will provide sufficient 
funding to Topaz Exchange for the exchange to carry out its 
responsibilities under the Act.\138\ Specifically, Topaz Exchange 
represented that ISE Holdings will make a cash contribution to Topaz 
Exchange of $5 million, in addition to previously provided ``in-kind'' 
contributions of legal, regulatory and infrastructure-related services 
to Topaz Exchange\139\ Topaz Exchange represented in its Form 1 
Application that the cash and in-kind contributions to Topaz Exchange 
will be adequate to operate Topaz Exchange, including its regulatory 
program.\140\ Further, Topaz Exchange, with ISE Holdings as its parent, 
will be affiliated with an existing exchange, ISE. Individuals 
currently employed by ISE have been providing, and will continue to 
provide, services to Topaz Exchange.\141\
---------------------------------------------------------------------------

    \138\ See Exhibit I to Topaz Exchange Form 1 Application.
    \139\ Other applicants for registration as a national securities 
exchange have noted in their Form 1 applications similar funding 
commitments and representations. BOX Exchange represented that, 
prior to launch, BOX Group LLC would allocate sufficient operational 
assets, including regulatory infrastructure and industry and 
regulatory memberships, along with a $1,000,000 loan to BOX 
Exchange. In MIAX, the exchange represented that Miami International 
Holdings, Inc. would allocate sufficient operational assets and make 
a capital contribution of not less than $2,000,000 into MIAX capital 
account prior to launching operations. See, e.g., MIAX Order, supra 
note 30.
    \140\ See Exhibit I to Topaz Exchange Form 1 Application.
    \141\ See id.
---------------------------------------------------------------------------

    Topaz Exchange represented in its Form 1 Application that there 
will be a written agreement between Topaz Exchange and ISE Holdings 
that requires ISE Holdings to provide adequate funding for Topaz 
Exchange's operation, including the regulation of Topaz Exchange.\142\ 
This agreement further provides that ISE Holdings will reimburse Topaz 
Exchange for its costs and expenses to the extent Topaz Exchange's 
assets are insufficient to meet its costs and expenses.\143\ Excess 
funds, as solely determined by Topaz Exchange, will be remitted to ISE 
Holdings.\144\ Further, Topaz Exchange will receive all fees, including 
regulatory fees and trading fees, payable by Topaz Exchange's members, 
as well as any funds received from any applicable market data fees and 
OPRA tape revenue.\145\ Regulatory funds, meaning the fees, fines or 
penalties derived from the regulatory operations of Topaz Exchange, 
will be used to fund the legal, regulatory and surveillance operations 
of Topaz Exchange.\146\
---------------------------------------------------------------------------

    \142\ See Amendment No. 3. Both BOX and MIAX also represented in 
their Form 1 applications that there would be explicit agreements 
with their respective holding companies to provide adequate funding 
for the exchanges' operations, including regulation.
    \143\ See Exhibit I to Topaz Exchange Form 1 Application.
    \144\ See id.
    \145\ See id.
    \146\ See id. See also Topaz Exchange LLC Agreement, Article 
III, Section 3.3. The Topaz Exchange LLC Agreement defines 
``Regulatory Funds'' as fees, fines or penalties derived from the 
regulatory operations of the [Topaz Exchange], provided that such 
term shall not include revenues derived from listing fees, market 
data revenues, transaction revenues or any other aspect of the 
commercial operations of the [Topaz Exchange], even if a portion of 
such revenues are used to pay costs associated with the regulatory 
operations of the [Topaz Exchange]. Id. This definition is 
consistent with the rules of other SROs. See, e.g., MIAX LLC 
Agreement Section 16; and MIAX By-Laws Article IX, Section 9.4.
---------------------------------------------------------------------------

c. Rule 17d-2 Agreements; Regulatory Contracts with FINRA and ISE
    Section 19(g)(1) of the Act,\147\ among other things, requires 
every SRO registered as either a national securities exchange or 
national securities association to examine for, and enforce compliance 
by, its members and persons associated with its members with the Act, 
the rules and regulations thereunder, and the SRO's own rules, unless 
the SRO is relieved of this responsibility pursuant to Section 17(d) or 
Section 19(g)(2) of the Act.\148\ Rule 17d-2 of the Act\149\ permits 
SROs to propose joint plans to allocate regulatory responsibilities 
amongst themselves for their common rules with respect to their common 
members.\150\ These agreements, which must be filed with and declared 
effective by the Commission, generally cover areas where each SRO's 
rules substantively overlap, including such regulatory functions as 
personnel registration and sales practices. Without this relief, the 
statutory obligation of each individual SRO could result in a pattern 
of multiple examinations of broker-dealers that maintain memberships in 
more than one SRO. Such regulatory duplication would add unnecessary 
expenses for common members and their SROs.
---------------------------------------------------------------------------

    \147\ 15 U.S.C. 78s(g)(1).
    \148\ 15 U.S.C. 78q(d) and 15 U.S.C. 78s(g)(2), respectively.
    \149\ See Section 17(d)(1) of the Act and Rule 17d-2 thereunder, 
15 U.S.C. 78q(d)(1) and 17 CFR 240.17d-2. Section 17(d)(1) of the 
Act allows the Commission to relieve an SRO of certain 
responsibilities with respect to members of the SRO who are also 
members of another SRO. Specifically, Section 17(d)(1) allows the 
Commission to relieve an SRO of its responsibilities to: (i) Receive 
regulatory reports from such members; (ii) examine such members for 
compliance with the Act and the rules and regulations thereunder, 
and the rules of the SRO; or (iii) carry out other specified 
regulatory responsibilities with respect to such members.
    \150\ 17 CFR 240.17d-2. Section 19(g)(1) of the Act requires 
every SRO to examine its members and persons associated with its 
members and to enforce compliance with the federal securities laws 
and the SRO's own rules, unless the SRO is relieved of this 
responsibility pursuant to Section 17(d) of the Act. Section 17(d) 
was intended, in part, to eliminate unnecessary multiple 
examinations and regulatory duplication with respect to Common 
Members. See Securities Exchange Act Release No. 12935 (October 28, 
1976), 41 FR 49091 (November 8, 1976) (``Rule 17d-2 Adopting 
Release'').
---------------------------------------------------------------------------

    A 17d-2 plan that is declared effective by the Commission relieves 
the specified SRO of those regulatory responsibilities allocated by the 
plan to another SRO.\151\ Many SROs have entered into Rule 17d-2 
agreements.\152\
---------------------------------------------------------------------------

    \151\ See id.
    \152\ See, e.g., Securities Exchange Act Release Nos. 59218 
(January 8, 2009), 74 FR 2143 (January 14, 2009) (File No. 4-575) 
(Financial Industry Regulatory Authority, Inc. (``FINRA'')/Boston 
Stock Exchange, Inc.); 58818 (October 20, 2008), 73 FR 63752 
(October 27, 2008) (File No. 4-569) (FINRA/BATS Exchange, Inc.); 
55755 (May 14, 2007), 72 FR 28087 (May 18, 2007) (File No. 4-536) 
(National Association of Securities Dealers, Inc. (``NASD'') (n/k/a 
FINRA) and Chicago Board of Options Exchange, Inc. (``CBOE'') 
concerning the CBOE Stock Exchange, LLC); 55367 (February 27, 2007), 
72 FR 9983 (March 6, 2007) (File No. 4-529) (NASD/ISE) (``ISE 
Bilateral 17d-2 Plan''); and 54136 (July 12, 2006), 71 FR 40759 
(July 18, 2006) (File No. 4-517) (NASD/The Nasdaq Stock Market LLC).
---------------------------------------------------------------------------

    Topaz Exchange has represented to the Commission that it will enter 
into the following allocation of regulatory responsibilities pursuant 
to Rule 17d-2 of the Act (``17d-2 Plans''),\153\ including the two 
existing multiparty plans applicable to options trading:
---------------------------------------------------------------------------

    \153\ Rule 17d-2 under the Act permits SROs to propose joint 
plans for the allocation of regulatory responsibilities with respect 
to their common members (i.e., 17d-2 plans).
---------------------------------------------------------------------------

     Multiparty 17d-2 Plan for the Allocation of Regulatory 
Responsibility for Options Sales Practice Matters;\154\
---------------------------------------------------------------------------

    \154\ See Exhibit L to Topaz Exchange Form 1 Application. See 
also Securities Exchange Act Release No. 68363 (December 5, 2012), 
77 FR 73711 (December 11, 2012) (File No. S7-966) (notice of filing 
and order approving and declaring effective an amendment to the 
multiparty 17d-2 plan concerning options-related sales practice 
matters).
---------------------------------------------------------------------------

     Multiparty 17d-2 Plan for the Allocation of Regulatory 
Responsibility for Options Related Market Surveillance Matters;\155\ 
and
---------------------------------------------------------------------------

    \155\ See Exhibit L to Topaz Exchange Form 1 Application. See 
also Securities Exchange Act Release No. 68362 (December 5, 2012), 
77 FR 73719 (December 11, 2012) (File No. 4-551) (notice of filing 
and order approving and declaring effective an amendment to the 
multiparty 17d-2 plan concerning options-related market 
surveillance).

---------------------------------------------------------------------------

[[Page 46632]]

     Bilateral 17d-2 Plan with FINRA that would cover, among 
other things, general inspection, examination, and enforcement 
activity.\156\
---------------------------------------------------------------------------

    \156\ See Exhibit L to Topaz Exchange Form 1 Application. See 
also ISE Bilateral 17d-2 Plan, supra note 152.
---------------------------------------------------------------------------

    If the Commission declares effective the amendments to the 
multilateral 17d-2 Plans and the new bilateral 17d-2 Plan, another SRO 
(often FINRA) would assume certain regulatory responsibility for 
members of Topaz Exchange that are also members of the SRO that assumes 
the regulatory responsibilities. This regulatory structure would be 
consistent with that of other exchanges, including ISE.\157\
---------------------------------------------------------------------------

    \157\ Amendments to the multilateral 17d-2 Plans and the new 
bilateral 17d-2 Plan are not before the Commission as part of this 
Order and, therefore, the Commission is not acting on them at this 
time.
---------------------------------------------------------------------------

    In addition, Topaz Exchange has entered into a third-party 
Regulatory Service Agreement (``RSA'') with FINRA.\158\ Under the RSA, 
FINRA \159\ will carry out certain specified regulatory activities on 
behalf of Topaz Exchange. For example, FINRA, in its capacity as 
service provider to Topaz Exchange, will provide member operation 
services, including membership application review, conducting market 
surveillance investigation services, conducting routine and cause 
examination services, assisting Topaz Exchange with disciplinary 
proceedings pursuant to Topaz Exchange's rules including conducting 
hearings, and providing dispute resolution services to Topaz Exchange 
members on behalf of Topaz Exchange. Topaz Exchange, however, will 
retain ultimate legal responsibility for the regulation of its members 
and market.\160\ This regulatory structure would be consistent with 
that of other exchanges.\161\
---------------------------------------------------------------------------

    \158\ See, e.g., Exhibit L to Topaz Exchange Form 1 Application.
    \159\ FINRA executed a single RSA with both ISE and Topaz 
Exchange as signatories. The single RSA, however, has two separate 
statements of work. The first statement of work describes the 
specified regulatory activities that FINRA will carry out on behalf 
of ISE. The second statement of work describes the specified 
regulatory activities that FINRA will carry out on behalf of Topaz 
Exchange.
    \160\ See Amendment No. 3.
    \161\ For example, ISE, EDGA, EDGX and BATS have entered into 
17d-2 Plans and RSAs with FINRA.
---------------------------------------------------------------------------

    Topaz Exchange has also entered into a facilities management 
agreement (``FMA'') with ISE.\162\ Pursuant to the proposed FMA, ISE 
intends to provide to Topaz Exchange certain services, including, for 
example, business management services, facilities management services, 
IT services, fiscal services, as well as Commission and other 
regulatory compliance services and other legal services, such as 
surveillance programs, legal programs, systems and other operational 
services.\163\ Topaz Exchange, however, will retain ultimate legal 
responsibility for the regulation of its members and market.
---------------------------------------------------------------------------

    \162\ See, e.g., Exhibit L to Topaz Exchange Form 1 Application. 
The FMA with ISE provides, in part, for the provision of Commission 
and other regulatory compliance services.
    \163\ See Exhibit L of Topaz Exchange Form 1 Application; see 
also Amendment No. 3.
---------------------------------------------------------------------------

    The Commission believes that it is consistent with the Act for 
Topaz Exchange to contract with other SROs to perform certain 
examination, enforcement, and disciplinary functions.\164\ These 
functions are fundamental elements of a regulatory program, and 
constitute core self-regulatory functions. The Commission believes that 
both FINRA, as a SRO that provides contractual services to other SROs, 
and ISE, as an SRO that currently operates an options exchange, should 
have the capacity to perform these functions for Topaz Exchange.\165\ 
However, Topaz Exchange, unless relieved by the Commission of its 
responsibility,\166\ bears the ultimate responsibility for self-
regulatory responsibilities and primary liability for self-regulatory 
failures, not the SRO retained to perform regulatory functions on Topaz 
Exchange's behalf. In performing these regulatory functions, however, 
the SRO retained to perform specified regulatory functions may 
nonetheless bear liability for causing or aiding and abetting the 
failure of Topaz Exchange to perform its regulatory functions.\167\ 
Accordingly, although FINRA and ISE will not act on their own behalves 
under their respective SRO responsibilities in carrying out these 
regulatory services for Topaz Exchange, as the SROs retained to perform 
regulatory functions, FINRA and ISE may have secondary liability if, 
for example, the Commission finds that the contracted functions are 
being performed so inadequately as to cause a violation of the federal 
securities laws by Topaz Exchange.
---------------------------------------------------------------------------

    \164\ See, e.g., Regulation ATS Release, supra note 30. See also 
Securities Exchange Act Release Nos. 50122 (July 29, 2004), 69 FR 
47962 (August 6, 2004) (SR-Amex-2004-32) (order approving rule that 
allowed Amex to contract with another SRO for regulatory services) 
(``Amex Regulatory Services Approval Order''); 57478 (March 12, 
2008), 73 FR 14521 (March 18, 2008) (SR-NASDAQ-2007-004 and SR-
NASDAQ-2007-080) (``NOM Approval Order''); Nasdaq Order, supra note 
29; and BATS Order, supra note 29.
    \165\ See, e.g., Amex Regulatory Services Approval Order, supra 
note 164; NOM Approval Order, supra note 164; and Nasdaq Order, 
supra note 29. The Commission notes that the RSA and FMA are not 
before the Commission and, therefore, the Commission is not acting 
on them.
    \166\ See supra note 149.
    \167\ For example, if failings by the SRO retained to perform 
regulatory functions have the effect of leaving an exchange in 
violation of any aspect of the exchange's self-regulatory 
obligations, the exchange will bear direct liability for the 
violation, while the SRO retained to perform regulatory functions 
may bear liability for causing or aiding and abetting the violation. 
See, e.g., MIAX Order, supra note 30; BOX Order, supra note 39; and 
Securities Exchange Act Release No. 42455 (February 24, 2000), 65 FR 
11388 (March 2, 2000) (File No. 10-127) (order granting the exchange 
registration of ISE) (``ISE Order'').
---------------------------------------------------------------------------

    As part of its FMA with ISE, Topaz Exchange proposes to use dual 
employees to staff its regulatory services program. In other words, 
current ISE employees will also serve in a similar capacity for Topaz 
Exchange under the FMA. Topaz Exchange represents that the FMA will 
contain an obligation on the part of Topaz Exchange and ISE to preserve 
the other party's information and materials which are confidential, 
proprietary and/or trade secrets and prevent unauthorized use or 
disclosure to third parties.\168\
---------------------------------------------------------------------------

    \168\ See Exhibit L to Topaz Exchange Form 1 Application; see 
also Amendment No. 3.
---------------------------------------------------------------------------

    The Commission believes that the use of ISE employees by Topaz 
Exchange is appropriate, as the operations, rules, and management of 
ISE and Topaz Exchange will overlap to a considerable degree such that 
Topaz Exchange should benefit by leveraging the experience of current 
ISE staff. The Commission has approved such arrangements in a similar 
context.\169\ However, the Commission expects both ISE and Topaz 
Exchange to monitor the workload of their dual employees and supplement 
their staffs, if necessary, so that Topaz Exchange maintains sufficient 
personnel to allow it to carry out the purposes of the Act and enforce 
compliance with the rules of Topaz Exchange and the federal securities 
laws.
---------------------------------------------------------------------------

    \169\ See, e.g., Securities Exchange Act Release No. 61152 
(December 10, 2009), 74 FR 66699 (December 16, 2009) (File No. 10-
191) (order granting registration to C2 Options Exchange) (``C2 
Order'').
---------------------------------------------------------------------------

D. Trading System

1. Access to Topaz Exchange
    Access to Topaz Exchange will be through the use of Exchange 
Rights.\170\ Through an application process, organizations will be 
approved to become members of Topaz Exchange

[[Page 46633]]

and to exercise trading rights.\171\ Exchange Rights will not convey 
any ownership rights, but will provide for voting rights for 
representation on the Topaz Exchange Board and will confer the ability 
to transact on Topaz Exchange.\172\ Exchange Rights may not be leased 
and are not transferable except in the event of a change in control of 
a member or corporate reorganization involving a member.\173\ There is 
no limit on the number of Exchange Rights issued by Topaz 
Exchange.\174\
---------------------------------------------------------------------------

    \170\ See Topaz Exchange Rule 300 Series. ``Exchange Rights'' 
means the PMM Rights, CMM Rights and EAM Rights collectively. See 
Topaz Exchange Rule 100(a)(17). PMM Rights, CMM Rights and EAM 
Rights have the meaning set forth in Article VI of Topaz Exchange 
LLC Agreement. See Topaz Exchange Rules 100(a)(12), 100(a)(15) and 
100(a)(36).
    \171\ The term ``Member'' means an organization that has been 
approved to exercise trading rights associated with Exchange Rights, 
and the term ``Membership'' refers to the trading privileges 
associated with Exchange Rights. See Topaz Exchange Rules 100(a)(23) 
and 100(a)(24). Under Topaz Exchange Rules 300 and 302(c), Topaz 
Exchange shall issue Memberships that confer the ability to transact 
on Topaz Exchange, although no rights shall be conferred upon a 
Member except those set forth in the Topaz Exchange LLC Agreement or 
Topaz Exchange Rules as amended from time to time. A Membership 
shall not convey any ownership interest in the Exchange. See Topaz 
Exchange Rules 300 and 302(c).
    \172\ See Topaz Exchange Rules 300 and 302(c); see also Topaz 
Exchange LLC Agreement, Article VI, Sections 6.1 and 6.3.
    \173\ See Topaz Exchange Rule 302(c). In such case, member 
status may be transferred to a qualified affiliate or successor upon 
written notice to Topaz Exchange. Id.
    \174\ See Topaz Exchange Rule 300(a); see also Topaz Exchange 
LLC Agreement, Article VI, Section 6.1.
---------------------------------------------------------------------------

    Membership in Topaz Exchange will be open to any broker-dealer 
registered under Section 15(b) of the Act that meets the standards for 
membership set forth in the rules of Topaz Exchange.\175\ The 
Exchange's denials from, and impositions of conditions upon, becoming 
or continuing to be a member may be appealed pursuant to rules 
governing hearing and review, described in Section II.E below.\176\ In 
addition to its regular membership application process, Topaz Exchange 
also will provide a process whereby a current member of ISE in good 
standing that is a registered broker-dealer can submit an abbreviated 
``waive-in'' application to Topaz Exchange.\177\ This waive-in process 
is similar to arrangements in place at other exchanges.\178\
---------------------------------------------------------------------------

    \175\ See Topaz Exchange Rule 301.
    \176\ See Topaz Exchange Rule 1700 Series, which incorporates by 
reference ISE Rule 1700 Series.
    \177\ See Topaz Exchange Rule 302(a).
    \178\ See, e.g., C2 Options Exchange, Inc. Rule 3.1(c)(1) 
(containing a similar expedited waive-in membership process for 
members of CBOE).
---------------------------------------------------------------------------

    Topaz Exchange will have three classes of membership: (1) PMMs; (2) 
CMMs; and (3) EAMs.\179\ PMM and CMMs may seek appointment to become 
market makers in one or more options classes traded on the 
exchange.\180\ Topaz Exchange proposes to allow firms that register as 
market makers to receive special privileges or rights over non-market 
maker members, such as participation entitlements for PMMs, if they 
satisfy certain affirmative and negative market making obligations on 
the exchange.\181\ This is similar to arrangements in place at other 
exchanges, such as ISE.\182\
---------------------------------------------------------------------------

    \179\ See Topaz Exchange Rule 301(c).
    \180\ See Topaz Exchange Rule 800 Series.
    \181\ See Topaz Exchange Rules 713, 802 and 803. See infra 
Section II.D.3.b. for further discussion of market maker privileges 
and obligations.
    \182\ See, e.g., ISE Rules 713, 802 and 803 (containing similar 
rights and obligations for market makers on ISE). However, some of 
Topaz Exchange's proposed access rules differ in some respects from 
the rules of ISE. For example, as a result of their differing 
membership structures, there is no limit on the number of PMMs that 
Topaz Exchange can approve for membership, whereas ISE can appoint 
only ten PMMs in total. There will still be only one PMM per options 
class on Topaz Exchange. There also will be no limit to the number 
of CMMs on Topaz Exchange, whereas ISE can appoint only 160 CMMs in 
total. EAM rights, however, will be unlimited on both ISE and Topaz 
Exchange. Topaz Exchange's approach is consistent with the rules of 
other exchanges that have no limit on the number of exchange rights, 
or their functional equivalent, that may be issued by the exchange. 
See, e.g., C2 Order, supra note 169.
---------------------------------------------------------------------------

    The Commission finds that Topaz Exchange's proposed membership 
rules are consistent with the Act, including Section 6(b)(2) of the 
Act,\183\ which requires the rules of an exchange to provide that any 
registered broker or dealer or natural person associated with a broker 
or dealer may become a member of such exchange or associated with a 
member thereof. Topaz Exchange's proposed rules with respect to 
exchange membership are substantively similar to the rules of other 
exchanges.\184\
---------------------------------------------------------------------------

    \183\ 15 U.S.C. 78f(b)(2).
    \184\ See, e.g., MIAX Rule 200 Series (``Access'').
---------------------------------------------------------------------------

    The Commission notes that pursuant to Section 6(c) of the Act,\185\ 
an exchange must deny membership to any person, other than a natural 
person, that is not a registered broker or dealer, any natural person 
that is not, or is not associated with, a registered broker or dealer, 
and registered broker-dealers that do not satisfy certain standards, 
such as financial responsibility or operational capacity. As a 
registered exchange, Topaz Exchange must independently determine if an 
applicant satisfies the standards set forth in the Act, regardless of 
whether an applicant is a member of another SRO.\186\
---------------------------------------------------------------------------

    \185\ 15 U.S.C. 78f(c).
    \186\ See, e.g., MIAX Order, supra note 30, at 77 FR 73074; BOX 
Order, supra note 39, at 77 FR 26337; BATS Order, supra note 29, at 
73 FR 49502; and Nasdaq Order, supra note 29, at 71 FR 3555.
---------------------------------------------------------------------------

    In addition, Topaz Exchange also will allow non-members to access 
Topaz Exchange as ``sponsored customers'' of a Topaz Exchange member, 
subject to certain rules.\187\ The sponsoring member will be 
responsible for implementing policies and procedures to supervise and 
monitor the trading of its sponsored users to ensure compliance with 
all applicable federal securities laws and rules and Topaz Exchange 
rules.\188\ Topaz Exchange's proposed sponsored access rules are 
similar to the rules of other exchanges that provide for sponsored 
access\189\ and are consistent with Rule 15c3-5 under the Act.\190\
---------------------------------------------------------------------------

    \187\ See Topaz Exchange Rule 706, Supplementary Material .01.
    \188\ See Topaz Exchange Rule 706. See also 17 CFR 240.15c3-5.
    \189\ See, e.g., ISE Rule 706; see also MIAX Rule 210.
    \190\ 17 CFR 240.15c3-5.
---------------------------------------------------------------------------

2. Linkage
    Topaz Exchange intends to become a participant in the Plan Relating 
to Options Order Protection and Locked/Crossed Markets or any successor 
plan (``Linkage Plan'').\191\ If admitted as a participant to the 
Linkage Plan, other plan participants will be able to send orders to 
Topaz Exchange in accordance with the terms of the plan as applied to 
Topaz Exchange.
---------------------------------------------------------------------------

    \191\ See Exhibit E to Topaz Exchange Form 1 Application, 
Section B (``Non-Member Access'') for a discussion of the Linkage 
Plan. See also Securities Exchange Act Release No. 60405 (July 30, 
2009), 74 FR 39362 (August 6, 2009) (File No. 4-546) (order 
approving the National Market System Plan Relating to Options Order 
Protection and Locked/Crossed Markets Submitted by the Chicago Board 
Options Exchange, Incorporated, International Securities Exchange, 
LLC, The NASDAQ Stock Market LLC, NASDAQ OMX BX, Inc., NASDAQ OMX 
PHLX, Inc., NYSE Amex LLC, and NYSE Arca, Inc.).
---------------------------------------------------------------------------

    Topaz Exchange rules include relevant definitions; establish the 
conditions pursuant to which members may enter orders in accordance 
with the Linkage Plan; impose obligations on Topaz Exchange regarding 
how it must process incoming orders; establish a general standard that 
members and Topaz Exchange should avoid trade-throughs; establish 
potential regulatory liability for members that engage in a pattern or 
practice of trading through other exchanges; and establish obligations 
with respect to locked and crossed markets.
    The Commission believes that Topaz Exchange has proposed rules that 
are designed to comply with the requirements of the Linkage Plan.\192\ 
Further, as provided below, before Topaz Exchange can commence 
operations as an exchange, it must

[[Page 46634]]

become a participant in the Linkage Plan.
---------------------------------------------------------------------------

    \192\ See, e.g., Topaz Exchange Rules relating to Intermarket 
Linkage in Rule 1900 Series, which incorporates by reference ISE 
Rule 1900 Series. See also Amendment No. 3.
---------------------------------------------------------------------------

3. Market Makers
a. Registration of Market Makers
    Members of Topaz Exchange may apply to become one of two types of 
market maker: PMMs or CMMs (collectively, ``Market Makers''). Market 
Makers are entitled to receive certain benefits and privileges in 
exchange for fulfilling certain affirmative and negative market-making 
obligations.\193\ Each class of Market Maker will receive a specific 
level of benefits and privileges in exchange for a specific level of 
obligation that such Market Maker assumes to the Topaz Exchange market.
---------------------------------------------------------------------------

    \193\ Market Makers' benefits and obligations are discussed in 
greater detail in the following section.
---------------------------------------------------------------------------

    To begin the process of registering as a PMM or CMM, a member will 
be required to file a written application with Topaz Exchange.\194\ In 
reviewing a member's application for membership, Topaz Exchange will 
consider, among other things, the applicant's market making 
ability.\195\ To qualify for registration as a Market Maker, a member 
of Topaz Exchange must meet the requirements established in Rule 15c3-1 
under the Act \196\ and the general requirements set forth in Topaz 
Exchange Rule 800 series, including the minimum financial requirements 
of Topaz Exchange Rule 809.\197\ All members who are approved to become 
Market Makers will be designated as specialists on Topaz Exchange for 
all purposes under the Act and rules thereunder.\198\ Topaz Exchange 
will not limit the number of qualifying entities that may become Market 
Makers.\199\
---------------------------------------------------------------------------

    \194\ See Topaz Exchange Rule 800(b).
    \195\ See id. The provision permitting Topaz Exchange to 
consider ``such other factors as [it] deems appropriate'' must be 
applied in a manner that is consistent with the Act, including 
provisions that prohibit an exchange from acting in an unfairly 
discriminatory manner. See 15 U.S.C. 78f(b)(5); see also MIAX Order, 
supra note 30, at 77 FR 73074 n.149.
    \196\ 17 CFR 240.15c3-1.
    \197\ See Topaz Exchange Rule 800 Series. See also Topaz 
Exchange Rule 1300 Series relating to Net Capital Requirements, 
which incorporates by reference ISE Rule 1300 Series.
    \198\ See Topaz Exchange Rule 800(a).
    \199\ See Topaz Exchange Rule 300. See also Exhibit E to Topaz 
Exchange Form 1 Application, Section A (``Introduction'').
---------------------------------------------------------------------------

    In addition, all ISE market makers in good standing will be 
eligible for an Exchange Right in the same membership category in which 
they operate on ISE to trade on Topaz Exchange.\200\ For example, a CMM 
in good standing on ISE will be eligible to become a CMM on Topaz 
Exchange, through the submission and approval of a Topaz Exchange 
Waive-In Membership Application.\201\
---------------------------------------------------------------------------

    \200\ See Topaz Exchange Rule 302(a).
    \201\ See id. See also Exhibit F to Topaz Exchange Form 1 
Application.
---------------------------------------------------------------------------

    Once approved, a Market Maker may seek appointment to make markets 
in one or more options classes traded on the Topaz Exchange.\202\ Topaz 
Exchange will provide non-ISE Members with at least sixty days advance 
written notice of the date upon which the Exchange will allocate 
options classes and appoint market makers in order to ensure that non-
ISE Members have a reasonable opportunity to participate in those 
processes.\203\ A market participant must have completed a membership 
application to be eligible to participate in the appointment and 
allocation processes.\204\
---------------------------------------------------------------------------

    \202\ See Topaz Exchange Rule 802(a).
    \203\ See Topaz Exchange Rule 302(b).
    \204\ See Exhibit E to Topaz Exchange Form 1 Application, 
Section A (``Introduction'').
---------------------------------------------------------------------------

    Either the Topaz Exchange Board or a committee thereof \205\ will 
appoint classes of options contracts traded on Topaz Exchange to Market 
Makers taking into consideration: (1) The financial resources available 
to the Market Maker; (2) the Market Maker's experience and expertise in 
market making or options trading; and (3) the maintenance and 
enhancement of competition among Market Makers in each option class to 
which they are appointed.\206\ No appointment of a Market Maker will be 
without the Market Maker's consent to such appointment, provided that 
refusal to accept an appointment may be deemed sufficient cause for 
termination or suspension of a market maker's registration.\207\ Topaz 
Exchange will appoint a PMM to each options class traded on Topaz 
Exchange.\208\ Once appointed, Topaz Exchange will surveil a Market 
Maker's activity for continued compliance with all applicable rules and 
requirements, which are discussed in more detail below.\209\
---------------------------------------------------------------------------

    \205\ See Topaz Exchange Rule 802(a). Topaz Exchange Rule 1700 
Series provides the process for hearings, review, and arbitration of 
claims by persons economically aggrieved by Topaz Exchange action, 
which would include denial of registration as a Market Maker.
    \206\ See id.
    \207\ See id.
    \208\ See Topaz Exchange Rule 802(b).
    \209\ See Topaz Exchange Rule 802(e).
---------------------------------------------------------------------------

    The Commission finds that Topaz Exchange's proposed rules for the 
registration and appointment of Market Makers are consistent with the 
Act. In particular, Topaz Exchange's rules provide an objective process 
by which a member could become a Market Maker on Topaz Exchange and 
provide for oversight by Topaz Exchange to monitor for continued 
compliance by Market Makers with the terms of their application for 
such status. The Commission notes that Topaz Exchange's proposed Market 
Maker registration and appointment requirements are similar to those of 
other options exchanges.\210\
---------------------------------------------------------------------------

    \210\ See, e.g., ISE Rules 800 and 801 and MIAX Rule 600 
(registration); ISE Rule 802 and MIAX Rule 602 (appointment).
---------------------------------------------------------------------------

b. Market Maker Obligations
    Pursuant to Topaz Exchange rules, Market Makers will be subject to 
a number of general obligations. In particular, the transactions of a 
Market Maker should constitute a course of dealings reasonably 
calculated to contribute to the maintenance of a fair and orderly 
market and a Marker Maker should not make bids or offers or enter into 
transactions that are inconsistent with such a course of dealings.\211\ 
A Market Maker has a continuous obligation to engage, to a reasonable 
degree under the existing circumstances, in dealings for his own 
account when there exists, or it is reasonably anticipated that there 
will exist, a lack of price continuity, a temporary disparity between 
the supply of and demand for a particular options contract, or a 
temporary distortion of the price relationships between options 
contracts of the same class.\212\ For all series of option classes 
which the Market Maker is appointed, the Market Maker is expected to: 
(1) Compete with other Market Makers to improve the market; (2) make 
markets that, absent changed market conditions, will be honored for the 
number of contracts entered into the Topaz Exchange's system; (3) 
update market quotations in response to changed market conditions; (4) 
price options contracts fairly by, among other things, bidding and 
offering so as to create the prescribed bid/ask differentials.\213\ 
These provisions are similar to arrangements in place at other options 
exchanges.\214\
---------------------------------------------------------------------------

    \211\ See Topaz Exchange Rule 803(a).
    \212\ See Topaz Exchange Rule 803(b).
    \213\ See Topaz Exchange Rule 803(b)(1)-(4). Specifically under 
Topaz Exchange Rule 803(b)(4), following the opening rotation, 
Market Makers must create differences of no more than $5 between the 
bid and offer. Prior to the opening rotation, spread differentials 
shall be no more than $.25 between the bid and offer for each 
options contract for which the bid is less than $2, no more than 
$.40 where the bid is at least $2 but does not exceed $5, no more 
than $.50 where the bid is more than $5 but does not exceed $10, no 
more than $.80 where the bid is more than $10 but does not exceed 
$20, and no more than $1 where the bid is $20 or greater, provided 
that the Topaz Exchange may establish differences other than the 
above for one or more options series.
    \214\ See, e.g., ISE Rules 802 and 803 (containing similar 
rights and obligations for market makers on ISE). However, some of 
Topaz Exchange's access rules differ in some respect from the rules 
of ISE. See also supra note 182.

---------------------------------------------------------------------------

[[Page 46635]]

    Further, Market Makers must maintain minimum net capital in 
accordance with Topaz Exchange rules, including the minimum financial 
requirement of Topaz Exchange Rule 809, in addition to the Act and 
rules and regulations thereunder.\215\ Market Makers also must maintain 
information barriers between their market making activity and Other 
Business Activities \216\ that are reasonably designed to prevent the 
misuse of material, non-public corporate or market information in the 
possession of persons on one side of the barrier from influencing the 
conduct of persons on the other side of the barrier.\217\
---------------------------------------------------------------------------

    \215\ See Topaz Exchange Rule 1300 Series, which incorporates by 
reference ISE Rule 1300 Series; see also Topaz Exchange Rule 809.
    \216\ ``Other Business Activities'' means: (1) Conducting an 
investment or banking or public securities business; (2) making 
markets in the stocks underlying the options in which it makes 
markets; or (3) handling listed options orders as agent on behalf of 
Public Customers or broker-dealers; (4) conducting non-market making 
proprietary listed options trading activities. See Topaz Exchange 
Rule 810(a).
    \217\ See Topaz Exchange Rule 810.
---------------------------------------------------------------------------

    Topaz Exchange's rules governing Market Maker quoting obligations 
are tailored to the specific class of Market Maker (that is, PMM or 
CMM).\218\ Specifically, a PMM will be subject to the highest standard 
applicable on Topaz Exchange, as a PMM must enter continuous two-sided 
quotations and enter into any resulting transactions in all of the 
series listed on the Topaz Exchange of the options classes to which it 
is appointed on a daily basis.\219\ PMMs are also required to 
participate in the opening rotation.\220\ Although a CMM is not 
required to enter quotations in the options classes to which it is 
appointed, whenever a CMM does enter a quote in an options class to 
which it is appointed, the CMM must then provide continuous quotations 
in that class for 60% of the time the options class is open for trading 
on the Topaz Exchange.\221\ Further, CMMs may be called upon by a Topaz 
Exchange official to submit a single quote or maintain continuous 
quotes in one or more series of options class to which the CMM is 
appointed whenever, in the judgment of such official, it is necessary 
to do so in the interest of fair and orderly markets.\222\ For purposes 
of meeting the continuous quoting obligations discussed herein, a 
Market Maker's quote must meet the bid/ask differential requirements of 
Topaz Exchange Rule 803(b)(4).\223\
---------------------------------------------------------------------------

    \218\ See Topaz Exchange Rule 804.
    \219\ See Topaz Exchange Rule 804(e)(1); see also Topaz Exchange 
Rule 804(c). A PMM shall be deemed to have provided continuous 
quotes pursuant to paragraph (e)(1) of Rule 804 if it provides two-
sided quotes for 90% of the time that an options class is open for 
trading on the Topaz Exchange. See Topaz Exchange Rule 804, 
Supplementary Material .01; see also Amendment No. 3.
    \220\ See Topaz Exchange Rule 701(b)(1). See also Amendment No. 
3.
    \221\ See Topaz Exchange Rule 804(e)(2). A CMM must maintain 
continuous quotations for at least 90% of the time the options class 
for which it receives Preferenced Orders is open for trading on the 
Topaz Exchange. See Topaz Exchange Rule 804(e)(2)(iii); see also 
Topaz Exchange Rule 713, Supplementary Material .03 regarding 
Preferenced Orders.
    \222\ See Topaz Exchange Rule 804(e)(2)(iv).
    \223\ See Topaz Exchange Rule 804(e)(1)-(2). See also supra note 
213.
---------------------------------------------------------------------------

    In options classes other than to which it is appointed, a Market 
Maker should not engage in transactions in an account in which it has 
an interest that are disproportionate in relation to, or in derogation 
of, the performance of its market making obligations as specified in 
the Topaz Exchange rules.\224\ Further, the total number of contracts 
executed during a quarter by a CMM in options classes to which it is 
not appointed may not exceed 25% of the total number of contracts 
traded by such CMMs in classes to which it is appointed and with 
respect to which it was quoting pursuant to Topaz Exchange Rule 
804(e)(2).\225\ Similarly, the total number of contracts executed 
during a quarter by a PMM in options classes to which it is not 
appointed may not exceed 10% of the total number of contracts traded 
per each PMM membership.\226\
---------------------------------------------------------------------------

    \224\ See Topaz Exchange Rule 803(d). Among other things, a 
Market Maker should not effect purchases or sales on the Topaz 
Exchange except in a reasonable and orderly manner. See id.
    \225\ See Topaz Exchange Rule 805(b)(2).
    \226\ See Topaz Exchange Rule 805(b)(3).
---------------------------------------------------------------------------

    If Topaz Exchange finds any failure by a Market Maker to properly 
perform as a market maker, such Market Maker may be subject to 
suspension or termination.\227\ Topaz Exchange may suspend or terminate 
any appointment of a Market Maker under Topaz Exchange Rule 802 and may 
make additional appointments whenever, in Topaz Exchange's judgment, 
the interests of a fair and orderly market are best served by such 
action.\228\
---------------------------------------------------------------------------

    \227\ See Topaz Exchange Rule 800.
    \228\ See Topaz Exchange Rule 802(d).
---------------------------------------------------------------------------

    Market Makers receive certain benefits for carrying out their 
responsibilities.\229\ For example, a broker-dealer or other lender may 
extend ``good faith'' credit to a member of a national securities 
exchange or registered broker-dealer to finance its activities as a 
market maker or specialist.\230\ PMMs are also entitled to certain 
participation entitlements.\231\ In addition, market makers are 
excepted from the prohibition in Section 11(a) of the Act.\232\
---------------------------------------------------------------------------

    \229\ See, e.g., MIAX Order, supra note 30 (discussing the 
benefits and obligations of market makers).
    \230\ See 12 CFR 221.5 and 12 CFR 220.7; see also 17 CFR 
240.15c3-1(a)(6) (capital requirements for market makers).
    \231\ See Topaz Exchange Rule 713, Supplementary Material 
.01(b)-(c). See also infra notes 261-268 and accompanying text 
(describing the PMM participation entitlements).
    \232\ 15 U.S.C. 78k(a).
---------------------------------------------------------------------------

    The Commission believes that a market maker must be subject to 
sufficient and commensurate affirmative obligations, including the 
obligation to hold itself out as willing to buy and sell options for 
its own account on a regular or continuous basis, to justify favorable 
treatment.\233\ The Commission further believes that the rules of all 
U.S. options markets need not provide the same standards for market 
maker participation, so long as they impose affirmative obligations 
that are consistent with the Act.\234\
---------------------------------------------------------------------------

    \233\ See MIAX Order, supra note 30, at 77 FR 73076; and BOX 
Order supra note 39; see also, e.g., C2 Order, supra note 169.
    \234\ See id.
---------------------------------------------------------------------------

    The Commission believes that Topaz Exchange's Market Maker 
participation requirements impose appropriate affirmative obligations 
on Topaz Exchange's Market Makers that are commensurate with the 
benefits afforded to such participants, as discussed above, and, 
accordingly, are consistent with the Act. The Commission believes that 
the specific levels of benefits conferred on the different classes of 
Market Makers (PMMs and CMMs) are appropriately balanced by the 
obligations imposed by Topaz Exchange's rules. The Commission further 
believes that Topaz Exchange's market maker requirements,\235\ which 
are identical to ISE's rules\236\ and similar to other options 
exchanges' rules,\237\ impose sufficient appropriate obligations that 
are consistent with the Act.
---------------------------------------------------------------------------

    \235\ See Topaz Exchange Rule 803.
    \236\ See, e.g., ISE Rule 800 Series.
    \237\ See, e.g., MIAX Order, supra note 30, and BOX Order, supra 
note 39.
---------------------------------------------------------------------------

    Finally, the Commission believes that the Act does not mandate a 
particular market model for exchanges, and while Market Makers may 
become an important source of liquidity on Topaz Exchange, they will 
likely not be the only source as Topaz Exchange is designed to match 
buying and selling interest of all Topaz Exchange participants.

[[Page 46636]]

4. Order Display, Execution, and Priority
    Topaz Exchange proposes to operate a fully automated electronic 
options trading platform to buy or sell securities with a continuous, 
automated matching function.\238\ Liquidity will be derived from Topaz 
Exchange members acting as principal or as agent electronically 
submitting quotes as well as market and various types of limit orders 
to buy or to sell.\239\ Non-members also may access Topaz Exchange 
pursuant to Topaz Exchange rules governing ``sponsored access.'' \240\ 
All of these electronic submissions to Topaz Exchange will be from 
remote locations, as there will be no trading floor.\241\ Topaz 
Exchange's Optimise system generally will automatically execute 
incoming orders.\242\ Non-opening trades will occur when a buy order/
quote and a sell order/quote match on the Topaz Exchange's order 
book.\243\ All options will be traded in decimals on Topaz Exchange and 
will be consistent with the Penny Pilot.\244\
---------------------------------------------------------------------------

    \238\ See Exhibit E to Topaz Exchange Form 1 Application.
    \239\ See id.
    \240\ See id.
    \241\ See id.
    \242\ See Topaz Exchange Rule 714.
    \243\ See Exhibit E to Topaz Exchange Form 1 Application.
    \244\ See Topaz Exchange Rule 710 and Supplementary Material 
.01. The Commission has approved exchange rules on a pilot basis 
that permit an exchange to quote series with premiums under $3 in 
pennies and series with premiums of $3 and over in nickels in 
approximately 360 options classes (``Penny Pilot''). In addition, 
these rules allow all series in QQQQs, IWM, and SPY to be quoted in 
pennies. See, e.g., Securities Exchange Act Release Nos. 60711 
(September 23, 2009), 74 FR 49419 (September 28, 2009); 61061 
(November 24, 2009), 74 FR 62857 (December 1, 2009) (File No. SR-
NYSEArca-2009-44) (approving Penny Pilot program expansions for NYSE 
Arca). Proposed Supplementary Material .01 to Rule 710 would permit 
Topaz Exchange to operate a pilot to permit certain options classes 
to be quoted and traded in increments as low as $0.01, consistent 
with these previously approved rules. Specifically, this pilot is 
consistent with the penny pilot on ISE, which was last extended on 
June 21, 2013 and is scheduled to expire on December 31, 2013. See 
Securities Exchange Act Release No. 69828 (June 21, 2013), 78 FR 
38745 (June 27, 2013) (File No. SR-ISE-2013-40). Similar to ISE, 
Topaz Exchange has further agreed to submit to the Commission such 
reports regarding the Penny Pilot as the Commission may request. See 
Exhibit B to Topaz Exchange Form 1 Application.
---------------------------------------------------------------------------

    All orders submitted to Topaz Exchange's trading platform must have 
a designated price and size (limit orders) \245\ or must be orders to 
buy or sell a stated amount of a security at the national best bid or 
offer when the order reaches Topaz Exchange (market orders).\246\ 
Members may submit the following orders to Topaz Exchange: Market 
Orders; Limit Orders (including Marketable Limit, Fill-or-Kill, 
Immediate or Cancel, Non-Displayed Penny Order, Intermarket Sweep, and 
Stopped Orders); \247\ or Contingency Orders (including All-Or-None, 
Stop, Stop Limit, Customer Participation, Reserve, Attributable, 
Customer Cross, Qualified Contingent Cross, Minimum Quantity,\248\ Do-
Not-Route, Add Liquidity, Opening Only, and Good-Till-Date 
Orders).\249\ Like ISE, Topaz Exchange also will permit flash 
mechanisms, which thereby permit certain orders to first be exposed at 
the NBBO to all Topaz Exchange members for execution at the National 
Best Bid or Offer (``NBBO'') before an unaffiliated broker will, under 
contract with Topaz Exchange, route the order to another market for 
execution.\250\
---------------------------------------------------------------------------

    \245\ A limit order is an order to buy or sell a stated number 
of options contracts at a specified price or better. Topaz Exchange 
Rule 715(b).
    \246\ A market order is an order to buy or sell a stated number 
of options contracts that is to be executed at the best price 
obtainable when the order reaches Topaz Exchange. Topaz Exchange 
Rule 715(a).
    \247\ See Topaz Exchange Rule 715. A Marketable Limit Order is a 
limit order to buy (sell) at or above (below) the best offer (bid) 
on the Topaz Exchange. A Fill-or-Kill Order is a limit order that is 
to be executed in its entirety as soon as it is received and, if not 
so executed, treated as cancelled. An Immediate-or-Cancel Order is a 
limit order that is to be executed in whole or in part upon receipt 
and any portion not so executed is to be treated as cancelled. A 
Non-Displayed Penny Order is a limit order that specifies a one-cent 
price increment in a security that has a minimum trading increment 
pursuant to Topaz Exchange Rule 710 that is larger than one-cent. An 
Intermarket Sweep Order is a limit order that meets the requirements 
of Topaz Exchange Rule 1900(h), which incorporates by reference ISE 
Rule 1900(h). A Stopped Order is a limit order that meets the 
requirements of Topaz Exchange Rule 1901(b)(8), which incorporates 
by reference ISE Rule 1901(b)(8). To execute Stopped Orders, members 
must enter them into the Facilitation Mechanism or Solicited Order 
Mechanism pursuant to Topaz Exchange Rule 716.
    \248\ The NASDAQ Letter noted that both Topaz Exchange Rules 
715(l) and 715(q) appear to describe Minimum Quantity Orders and 
urged that Topaz Exchange clarify the difference between these two 
types of Minimum Quantity Orders. See NASDAQ Letter, supra note 6. 
Topaz Exchange stated that it will correct the duplicative 
definition. See Topaz Exchange Response Letter, supra note 7, and 
Amendment No. 3. The Commission believes that Topaz Exchange's 
revision to Topaz Exchange Rule 715(l) appropriately addresses the 
commenter's concern.
    \249\ See Topaz Exchange Rule 715. An All-or-None Order is a 
limit or market order that is to be executed in its entirety or not 
at all. A Stop Order is an order that becomes a market order when 
the stop price is elected. A Stop Limit Order is an order that 
becomes a limit order when the stop price is elected. A Customer 
Participation Order is a limit order on behalf of a Public Customer 
(as defined in Topaz Exchange Rule 100(a)(38)) that, in addition to 
the limit order price in standard increments according to Topaz 
Exchange Rule 710, includes a price stated in one-cent increments at 
which the Public Customer wishes to participate in trades executed 
in the same options series in penny increments through the Price 
Improvement Mechanism pursuant to Topaz Exchange Rule 723. A Reserve 
Order is a limit order that contains both a displayed portion and a 
non-displayed portion. An Attributable Order is a market or limit 
order which displays the user firm ID for purposes of electronic 
trading on Topaz Exchange. A Customer Cross Order is comprised of a 
Priority Customer Order (as defined in Topaz Exchange Rule 
100(a)(37B) to buy and a Priority Customer Order to sell at the same 
price and for the same quantity. A Qualified Contingent Cross order 
is comprised of an order to buy or sell at least 1000 contracts that 
is identified as being part of a qualified contingent trade (as 
defined in Topaz Exchange Rule 715, Supplementary Material .02) 
coupled with a contra-side order to buy or sell an equal number of 
contracts. A Minimum Quantity Order is an order that is initially 
available for partial execution only for a specified number of 
contracts or greater. A Do-Not-Route Order is a market or limit 
order that is to be executed in whole or in part on Topaz Exchange 
only. An Add Liquidity Order is a limit order that is to be executed 
in whole or in part on Topaz Exchange (i) only after being displayed 
on Topaz Exchange's limit order book; and (ii) without routing any 
portion of the order to another market center. An Opening Only Order 
is a limit order that can be entered for the opening rotation only. 
A Good-Till-Date Order is a limit order to buy or sell which, if not 
executed, will be cancelled at the sooner of the end of the 
expiration date assigned to the order, or the expiration of the 
series. These order types are the same order types that are 
available on ISE, except that ISE also includes several complex 
order types that are not proposed for Topaz Exchange. See Topaz 
Exchange Rule 715; ISE Rules 715 and 722; see also Exhibit B to 
Topaz Exchange Form 1 Application.
    \250\ See Topaz Exchange Rule 1901, Supplementary Material .02 
(which incorporates by reference ISE Rule 1901, Supplementary 
Material .02). See also Amendment No. 3 (removing exposure and 
routing obligation from PMMs under Topaz Exchange Rule 800 Series).
---------------------------------------------------------------------------

    Quotes entered by PMMs and CMMs must, like Limit Orders, be priced 
and have a designated size.\251\ Orders will be accepted for any 
security traded on Topaz Exchange, whether submitted by a member on a 
proprietary or agency basis in any size,\252\ whereas quotes for any 
security traded on Topaz Exchange may only be submitted by PMMs and 
CMMs and only in the options classes to which the market makers are 
appointed.\253\ Topaz Exchange will be required to maintain a full 
audit trail of every incoming and outgoing message (including all 
orders and quotes) submitted to the Topaz Exchange's system.\254\ 
Members may receive status reports regarding orders submitted to Topaz 
Exchange or change or cancel an

[[Page 46637]]

order at any time before that order is executed on Topaz Exchange, 
except as otherwise specified in Topaz Exchange Rule 723 (Price 
Improvement Mechanism for Crossing Transactions).\255\
---------------------------------------------------------------------------

    \251\ See Topaz Exchange Rule 804(b). The NASDAQ Letter noted 
that proposed Topaz Exchange Rule 804(g) and Supplementary Material 
.01 appear to be identical and urged that Topaz Exchange clarify 
this provision. See NASDAQ Letter, supra note 6. Topaz Exchange 
stated that it will correct the duplicative provision. See Topaz 
Exchange Response Letter, supra note 7, and Amendment No. 3. The 
Commission believes that Topaz Exchange's revision to Topaz Exchange 
Rule 804, Supplementary Material .01 appropriately addresses the 
commenter's concern.
    \252\ See Topaz Exchange Rule 713(a).
    \253\ See Topaz Exchange Rule 804(a).
    \254\ See 17 CFR 240.17a-5. See also Exhibit E to Topaz Exchange 
Form 1 Application, Section C.
    \255\ See Exhibit E to Topaz Exchange Form 1 Application, 
Section C.
---------------------------------------------------------------------------

    All orders and quotes submitted to Topaz Exchange will be displayed 
unless designated otherwise by the member submitting the order.\256\ 
Displayed orders and quotes will be displayed on an anonymous basis 
(except for Attributable Orders,\257\ which will allow voluntary 
disclosure of firm identification information) at a member's specified 
price. Non-Displayed Orders (the non-displayed portion of a Reserve 
Order or a Non-Displayed Penny Order) will not be displayed to anyone 
and will not have time priority over displayed orders at the same 
price.\258\
---------------------------------------------------------------------------

    \256\ See Topaz Exchange Rule 704.
    \257\ An Attributable Order is a market or limit order which 
displays the user firm's ID for purposes of trading on the Topaz 
Exchange. Use of Attributable Orders would be voluntary. This order 
type is consistent with similar order types on other exchanges. See, 
e.g., CBOE Rule 6.53(o) (attributable order type).
    \258\ See Topaz Exchange Rules 715(b)(4) and 715(g).
---------------------------------------------------------------------------

    Topaz Exchange will utilize a pro-rata priority scheme with a 
Priority Customer preference.\259\ This scheme is the same as what the 
Commission has approved for ISE.\260\
---------------------------------------------------------------------------

    \259\ See Topaz Exchange Rule 713, Supplementary Material 01. 
Under this priority methodology, the highest bid and lowest offer 
will have priority except that Priority Customer Orders will have 
priority over professional interest and all market maker interest at 
the same price. Subject to certain limits, Professional Orders and 
market maker quotes at the best price receive allocations based upon 
the percentage of the total number of contracts available at the 
best price that is represented by the size of the Professional Order 
or quote. If there were two or more Priority Customer Orders for the 
same options series at the same price, priority will be afforded 
based on the sequence in which such orders were received. Topaz 
Exchange rules will define ``Priority Customer'' as a person or 
entity that is not a broker or dealer in securities, and does not 
place more than 390 orders in listed options per day on average 
during a calendar month for its own beneficial accounts. 
``Professional Orders,'' i.e., orders for the account of a person or 
entity that is not a Priority Customer, will be subordinate to 
Priority Customer Orders for priority and fee purposes. Professional 
Orders will include orders of broker-dealers and orders of those 
Public Customers that are not Priority Customers. See Topaz Exchange 
Rules 100(a)(37A)-(37C) for definitions of Priority Customer, 
Priority Customer Order and Professional Order, respectively.
    \260\ See, e.g., ISE Rule 713, Priority of Quotes and Orders.
---------------------------------------------------------------------------

    In addition, under Topaz Exchange rules, PMMs are granted certain 
participation entitlements. For example, PMMs will be entitled to a 
participation entitlement with respect to each incoming order if they 
have a quote at the NBBO.\261\ The PMM participation entitlement will 
apply only to any remaining balance after any Priority Customer \262\ 
orders have first been satisfied.\263\ The PMM will not be allocated a 
total quantity greater than the quantity it is quoting at the execution 
price, and it will not receive any further allocation of an order if it 
receives a participation entitlement.\264\ Another such entitlement 
provides that small size orders (i.e., five or fewer contracts) will be 
allocated in full to the PMM if it has a quote at the NBBO.\265\
---------------------------------------------------------------------------

    \261\ See Topaz Exchange Rule 713, Supplementary Material .01. 
Specifically, the PMM's participation entitlement will be equal to 
the greater of: (i) The proportion of the total size at the best 
price represented by the size of its quote, or (ii) 60% of the 
contracts to be allocated if there is only one other Market Maker 
quotation at the NBBO or 40% if there are two or more other Market 
Maker quotes at the NBBO. See Topaz Exchange Rule 713, Supplementary 
Material .01(b).
    \262\ See supra note 259 for the definition of Priority 
Customer.
    \263\ See Topaz Exchange Rule 713, Supplementary Material .01.
    \264\ See id.
    \265\ See Topaz Exchange Rule 713, Supplementary Material 
.01(c). The rule provides that Topaz Exchange will review the 
functioning of this provision quarterly to make sure that small size 
orders do not account for more than 40% of the volume executed on 
Topaz Exchange. Id.
---------------------------------------------------------------------------

    These participation entitlements for PMMs are consistent with 
provisions that the Commission has approved for other exchanges.\266\ 
The Commission believes that these entitlements are appropriately 
balanced by the obligations imposed on these classes of market makers, 
as discussed in detail above.\267\ In particular, PMMs are subject to 
higher quoting obligations than other Market Makers who are not 
eligible to receive the aforementioned participation entitlements.\268\ 
Therefore, the Commission believes that the proposed rules regarding 
participation entitlements are consistent with the Act.
---------------------------------------------------------------------------

    \266\ See, e.g., ISE Rule 713, Supplementary Materials .01 and 
.03; see also MIAX Order, supra note 30.
    \267\ See supra Section II.D.3.b (discussing market maker 
obligations).
    \268\ For example, as discussed above, supra Section II.D.3.b., 
PMMs must provide continuous two-sided quotes in each appointed 
option class.
---------------------------------------------------------------------------

    Topaz Exchange proposes to make available certain additional order 
processing and matching features, largely based on features available 
on ISE.\269\ Mechanisms that will be utilized by Topaz Exchange 
include: A Price Improvement Mechanism (which affords the opportunity 
for price improvement after an auction for eligible orders above the 
NBBO); \270\ a Facilitation Mechanism (which affords members an 
opportunity to cross orders after an auction and provides the 
facilitating member the opportunity to receive 40% of the agency 
order); \271\ and a Solicited Order Mechanism (which allows members 
representing agency orders the opportunity to cross large size 
solicited orders after an auction).\272\ These mechanisms are 
consistent with substantially similar mechanisms currently existing on 
other options exchanges, including identical mechanisms on ISE with 
respect to non-complex orders.\273\
---------------------------------------------------------------------------

    \269\ The primary difference between Topaz Exchange's order 
processing and matching features and those of ISE previously 
approved by the Commission will be that Topaz Exchange will not 
accept complex orders.
    \270\ See Topaz Exchange Rule 723. Topaz Exchange will operate a 
pilot program whereby there will be no minimum size requirements for 
orders to be eligible for the PIM. See Exhibit B to Topaz Exchange 
Form 1 Application; see also Topaz Exchange Rule 723, Supplementary 
Material .03.
    \271\ See Topaz Exchange Rule 716(d). The NASDAQ Letter stated 
that it appears that the rule concerning the Facilitation Mechanism 
was internally inconsistent in part. Specifically, the NASDAQ Letter 
noted that proposed Topaz Exchange Rule 716(d)(3)(i) stated that 
Priority Customer bids (offers) that are priced higher (lower) than 
the facilitation price will be executed at the facilitation price, 
and further noted that the same section of the rule also stated that 
a facilitation order would be cancelled at the end of the exposure 
period if an execution would take place a price that is inferior to 
the best bid (offer) on Topaz. See NASDAQ Letter, supra note 6. The 
NASDAQ Letter suggested that this means that a Priority Customer 
bidding higher than the facilitation price would cause the 
facilitation order to be cancelled. See id. Topaz Exchange clarified 
this point by explaining that, because Topaz Exchange is a price 
priority exchange, Topaz Exchange will not execute a facilitation 
order at a price that is inferior to the Topaz Exchange best bid or 
offer (``Topaz BBO'') at the time of execution. Topaz Exchange noted 
that, since interest on the opposite side of a facilitation order 
participates in the execution of the facilitation order, the only 
instance where a better priced Priority Customer Order might be 
outside of the Topaz BBO is when the order is on the same side of 
the market as the facilitation order. In other words, the text of 
Rule 716(d) means that better-priced Priority Customer Orders on the 
opposite side of the market from the order being facilitated will be 
given the benefit of executing at the facilitation price, whereas 
better-priced Priority Customer Orders on the same side of the 
market as the order being facilitated will cause the facilitation 
order to be cancelled. See Topaz Exchange Response Letter, supra 
note 7.
    \272\ See Topaz Exchange Rule 716(e). With respect to the Block 
Order, Facilitation and Solicited Order Mechanisms described in 
Topaz Exchange Rule 716(b), (d) and (e), the NYSE Euronext Letter II 
recommended clarifying language to describe what terms, if any, 
should be contained within a ``broadcast message.'' See NYSE 
Euronext Letter II, supra note 6. Topaz Exchange stated that it 
would amend the various sections of the rule to clarify the terms of 
the broadcast message. See Topaz Exchange Response Letter, supra 
note 7, and Amendment No. 3. The Commission believes that Topaz 
Exchange's revisions to Topaz Exchange Rule 716(b), (d), and (e) 
appropriately address the commenter's concerns.
    \273\ See ISE Rules 716 and 723.
---------------------------------------------------------------------------

    Members will be able to access Topaz Exchange through a variety of 
electronic

[[Page 46638]]

systems, and non-members will be able to access Topaz Exchange pursuant 
to sponsored access arrangements with Topaz Exchange members, pursuant 
to Topaz Exchange rules.\274\ As noted above, Topaz Exchange also 
intends to become a participant in the Linkage Plan.\275\ The manner in 
which Topaz Exchange proposes to comply with the Linkage Plan is 
identical to the manner in which ISE complies with the Linkage 
Plan.\276\ To comply with the Linkage Plan, Topaz Exchange, among other 
things, will prohibit its members from effecting a transaction at a 
price that is inferior to the NBBO, unless an exception applies.\277\ 
Topaz Exchange will provide a centralized process for sending 
intermarket sweep orders to other exchanges on behalf of Public 
Customer Orders.\278\ Topaz Exchange will contract with one or more 
unaffiliated brokers to route orders to other exchanges when necessary 
to comply with the Linkage Plan. In circumstances where marketable 
Public Customer Orders are received when Topaz Exchange is not at the 
NBBO or orders are received that would lock or cross another market, 
they will be exposed to Topaz Exchange members for up to one 
second.\279\ If, after a Public Customer Order is exposed, such order 
cannot be executed in full on Topaz Exchange at the then-current NBBO 
or better and is marketable, the lesser of the full displayed size of 
the protected bid(s) or protected offer(s) that are priced better than 
the Topaz Exchange's quote or the balance of the order will be sent to 
a contracted unaffiliated broker, and any additional balance of the 
order that is not marketable against the then-current NBBO will be 
placed on the Topaz Exchange book.\280\
---------------------------------------------------------------------------

    \274\ See, e.g., Topaz Exchange Rule 706, Supplementary Material 
.01.
    \275\ See Topaz Exchange Rule 1900 Series, which incorporates by 
reference ISE Rule 1900 Series.
    \276\ The Commission recently approved a change in the way in 
which ISE complies with the Linkage Plan by now contracting with one 
or more unaffiliated brokers to route intermarket sweep orders of 
Public Customers to other exchanges when necessary. See Securities 
Exchange Act Release No. 69396 (April 18, 2013), 78 FR 24273 (April 
24, 2013) (File No. SR-ISE-2013-18). PMMs no longer have the 
responsibility of either executing the Public Customer Order at a 
price that at least matches the NBBO or obtaining better prices from 
the away market(s) by sending one or more intermarket sweep orders 
on the Public Customer's behalf. See also Amendment No. 3 (removing 
exposure and routing obligation from PMMs under Topaz Exchange's 
Rule 800 Series).
    \277\ See Topaz Exchange Rule 714; see also ISE Rule 714.
    \278\ See Topaz Exchange Rule 1901, which incorporates by 
reference ISE Rule 1901.
    \279\ See Topaz Exchange Rule 1901, Supplementary Material .02, 
which incorporates by reference ISE Rule 1901, Supplementary 
Material .02.
    \280\ See id. Any additional balance of the order will be 
executed on Topaz Exchange if it is marketable.
---------------------------------------------------------------------------

    The Commission believes that Topaz Exchange's proposed display, 
execution, and priority rules are consistent with the Act. In 
particular, the Commission finds that the proposed rules are consistent 
with Section 6(b)(5) of the Act,\281\ which, among other things, 
requires that the rules of a national securities exchange be designed 
to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in regulating 
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, and to not 
permit unfair discrimination between customers, issuers, or dealers. 
The Commission also finds that the proposed rules are consistent with 
Section 6(b)(8) of the Act,\282\ which requires that the rules of an 
exchange not impose any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act. The trading 
rules of Topaz Exchange are substantially similar to the current ISE 
trading rules, which were approved at the time ISE's registration as a 
national securities exchange was granted \283\ or filed with and 
approved by the Commission (or otherwise became effective) pursuant to 
Section 19(b) of the Act.\284\ The Commission believes that Topaz 
Exchange's trading rules, in general, do not raise any novel or 
controversial issues.\285\
---------------------------------------------------------------------------

    \281\ 15 U.S.C. 78f(b)(5).
    \282\ 15 U.S.C. 78f(b)(8).
    \283\ See ISE Order, supra note 167.
    \284\ The Commission notes, however, that some of Topaz 
Exchange's rules differ in some respects from the rules of ISE. For 
example, Topaz Exchange is not proposing to incorporate ISE's rules 
relating to the trading of equity securities or to incorporate any 
rules concerning the trading of complex or multi-legged orders at 
this time.
    \285\ With respect to clearing rules, the three commenters 
recommended clarifying language with respect to Topaz Exchange Rule 
712(b), specifically ``. . . or other guarantee given by such 
Clearing Member to such Member . . . .'' The commenters noted that 
this language lacks clarity whether Topaz Exchange Rule 712(b) 
requires some form of written authorization between a clearing 
member and a member in order for the member to give up the name of a 
particular clearing member. See CBOE Letter, NASDAQ Letter and NYSE 
Euronext Letter I, supra note 6. The NASDAQ Letter noted that a 
written, transparent and auditable authorization is needed to 
provide proper safeguards and protections for clearing members and 
to ensure clearing members are in compliance with aspects of the 
Commission Rule 15c3-3 in general. See NASDAQ Letter, supra note 6. 
The NYSE Euronext Letter I noted that the requirements for a letter 
of authorization were also not clearly defined and that Topaz 
Exchange should have rule text that governs the terms and revocation 
of letters of authorization. Topaz Exchange clarified this point by 
noting that ISE has interpreted and applied its identical rule to 
require the submission of written authorization in order for an ISE 
member to give up a particular clearing member's name. Topaz 
Exchange further noted that it would amend the rule to make clear 
that written authorization is required. See Topaz Exchange Response 
Letter, supra note 7, and Amendment No 3. The Commission believes 
that Topaz Exchange's revision to Topaz Exchange Rule 712(b) 
appropriately addresses the commenters' concerns.
---------------------------------------------------------------------------

5. Section 11(a) of the Act
    Section 11(a)(1) of the Act \286\ prohibits a member of a national 
securities exchange from effecting transactions on that exchange for 
its own account, the account of an associated person, or an account 
over which it or its associated person exercises discretion 
(collectively, ``covered accounts''), unless an exception applies. The 
Exchange has represented that it has analyzed its rules proposed 
hereunder, and believes that they are consistent with Section 11(a) of 
the Act and rules thereunder. For the reasons set forth below, based on 
Topaz Exchange's representations, the Commission believes that Topaz 
Exchange's order execution algorithm, including the Facilitation, 
Solicitation and Customer Cross processes (but excluding the Price 
Improvement Mechanism), will allow members to meet the requirements of 
Rule 11a2-2(T) for executions on Topaz Exchange. Additionally, the 
Commission believes that Topaz Exchange members' executions that occur 
through the Price Improvement Mechanism will be consistent with the 
requirements in Section 11(a)(1)(G) of the Act and rule 11a1-1(T) 
thereunder.
---------------------------------------------------------------------------

    \286\ 15 U.S.C. 78k(a)(1).
---------------------------------------------------------------------------

a. Rule 11a2-2(T)
    Rule 11a2-2(T) under the Act,\287\ known as the ``effect versus 
execute'' rule, provides exchange members with an exemption from the 
Section 11(a)(1) prohibition. Rule 11a2-2(T) permits an exchange 
member, subject to certain conditions, to effect transactions for 
covered accounts by arranging for an unaffiliated member to execute the 
transactions on the exchange. To comply with Rule 11a2-2(T)'s 
conditions, a member: (i) May not be affiliated with the executing 
member; (ii) must transmit the order from off the exchange floor; (iii) 
may not participate in the execution of the transaction once it has 
been transmitted to the member performing the execution; \288\ and (iv)

[[Page 46639]]

with respect to an account over which the member has investment 
discretion, neither the member nor its associated person may retain any 
compensation in connection with effecting the transaction except as 
provided in the Rule.
---------------------------------------------------------------------------

    \287\ 17 CFR 240.11a2-2(T).
    \288\ The member may, however, participate in clearing and 
settling the transaction. See Securities Exchange Act Release No. 
14563 (March 14, 1978), 43 FR 11542 (March 17, 1978) (regarding the 
NYSE's Designated Order Turnaround System) (``1978 Release'').
---------------------------------------------------------------------------

    In a letter to the Commission,\289\ Topaz Exchange requested that 
the Commission concur with its conclusion that Topaz Exchange members 
that enter orders through the Topaz Exchange system, including the 
Facilitation, Solicitation and Customer Cross processes, (but excluding 
those transactions effected through the PIM process), satisfy the 
requirements of Rule 11a2-2(T). For the reasons set forth below, the 
Commission believes that Topaz Exchange members that enter orders 
through the Topaz Exchange system, including the Facilitation, 
Solicitation and Customer Cross processes, but excluding those 
transactions effected through the PIM process, will satisfy the 
conditions of Rule 11a2-2(T).
---------------------------------------------------------------------------

    \289\ See Letter from Michael Simon, General Counsel, Secretary 
and Chief Regulatory Officer, Topaz Exchange, to Elizabeth Murphy, 
Secretary, Commission, dated December 14, 2012 (``Exchange 11(a) 
Request Letter'').
---------------------------------------------------------------------------

    Rule 11a2-2(T)'s first condition is that the order be executed by 
an exchange member who is unaffiliated with the member initiating the 
order. The Commission has stated that the requirement is satisfied when 
automated exchange facilities, such as the Topaz Exchange system, 
including the Facilitation, Solicitation and Customer Cross processes, 
are used, as long as the design of these systems ensures that members 
do not possess any special or unique trading advantages over non-
members in handling their orders after transmitting them to the 
Exchange.\290\ Topaz Exchange has represented that the design of the 
trading platform ensures that no member has any special or unique 
trading advantage in the handling of its orders after transmitting its 
orders to Topaz Exchange.\291\ Based on the Exchange's representation, 
the Commission believes that the Topaz Exchange trading system, 
including the Facilitation, Solicitation and Customer Cross processes, 
will satisfy this requirement.
---------------------------------------------------------------------------

    \290\ In considering the operation of automated execution 
systems operated by an exchange, the Commission noted that while 
there is no independent executing exchange member, the execution of 
an order is automatic once it has been transmitted into each system. 
Because the design of these systems ensures that members do not 
possess any special or unique trading advantages in handling their 
orders after transmitting them to the exchange, the Commission has 
stated that executions obtained through these systems satisfy the 
independent execution requirement of Rule 11a2-2(T). See Securities 
Exchange Act Release No. 15533 (January 29, 1979), 44 FR 6084, 6086 
n.25 (January 31, 1979) (File No. S7-613) (regarding the American 
Stock Exchange (``Amex'') Post Execution Reporting System, the Amex 
Switching System, the Intermarket Trading System, the Multiple 
Dealer Trading Facility of the Cincinnati Stock Exchange, the PCX 
Communications and Execution System, and the Philadelphia Stock 
Exchange Automated Communications and Execution System (``1979 
Release'')).
    \291\ See Exchange 11(a) Request Letter, supra note 289.
---------------------------------------------------------------------------

    Second, Rule 11a2-2(T) requires orders for covered accounts to be 
transmitted from off the exchange floor. Topaz Exchange will not have a 
physical trading floor, and like other automated systems, will receive 
orders electronically through remote terminals or computer-to-computer 
interfaces. In the context of other automated trading systems, the 
Commission has found that the off-floor transmission requirement is met 
if a covered account order is transmitted from a remote location 
directly to an exchange's floor by electronic means.\292\ Orders sent 
to Topaz Exchange, regardless of where it executes within the Topaz 
Exchange system, including as a Facilitation, a Solicitation or a 
Customer Cross process, will be transmitted from remote terminals 
directly to Topaz Exchange by electronic means. Since the Topaz 
Exchange trading system receives all orders electronically through 
remote terminals or computer-to-computer interfaces, the Commission 
believes that the trading system, including the Facilitation, 
Solicitation and Customer Cross processes, will satisfy the off-floor 
transmission requirement.
---------------------------------------------------------------------------

    \292\ See, e.g., Securities Exchange Act Release Nos. 59154 
(December 23, 2008) 73 FR 80468 (December 31, 2008) (SR-BSE-2008-48) 
(order approving proposed rules of BX); 49068, (January 13, 2004), 
69 FR 2775 (January 20, 2004) (SR-BSE-2002-15) (establishing, among 
other things, BOX as an options trading facility of BSE); 44983, 
(October 25, 2001), 66 FR 55225 (November 1, 2001) (SR-PCX-00-25) 
(approving the PCX's use of the Archipelago Exchange as its equity 
trading facility); 29237 (May 24, 1991), 56 FR 24853 (May 31, 1991) 
(SR-NYSE-90-52 and SR-NYSE-90-53) (regarding NYSE's Off-Hours 
Trading Facility). See 1978 Release, supra note 288. See also 1979 
Release, supra note 290.
---------------------------------------------------------------------------

    Third, Rule 11a2-2(T) requires that the member not participate in 
the execution of its order once it has been transmitted to the member 
performing the execution.\293\ Topaz Exchange represented that at no 
time following the submission of an order is a member able to acquire 
control or influence over the result or timing of an order's execution. 
According to Topaz Exchange, orders submitted through the Topaz 
Exchange system, including the Facilitation, Solicitation and Customer 
Cross processes, also meet the non-participation requirement. The 
execution of a member's order depends not on the member entering the 
order, but rather on what orders, bids, or offers are present in the 
system at the time the member submits the order and on the priority of 
those orders, bids or offers.\294\ Topaz Exchange represents that 
orders sent to Topaz Exchange and through the Facilitation, 
Solicitation and Customer Cross processes will be centrally processed 
and executed automatically by Topaz Exchange.\295\ Topaz Exchange 
further represents that orders sent to Topaz Exchange will be 
transmitted from remote terminals directly to the system by electronic 
means.\296\ Once an order is submitted to Topaz Exchange, the order is 
executed against another order based on the established matching 
algorithms for the Topaz Exchange system, including the Facilitation, 
Solicitation and Customer Cross processes.\297\ Trades will execute 
when orders or quotations on Topaz Exchange match one another based on 
their priority.\298\ As Topaz Exchange stated in its Exchange 11(a) 
Request Letter, the execution does not depend on the participant but 
rather upon what other orders are entered into the Topaz Exchange 
system, including the Facilitation, Solicitation and Customer Cross 
processes, at or around the same time as the subject order; what orders 
are on Topaz Exchange; or submitted as Responses; and where the order 
is ranked based on the priority ranking algorithm.\299\ Therefore, at 
no time following the submission of an order to the Topaz Exchange 
system, including through the Facilitation, Solicitation or Customer 
Cross processes, is a participant able to acquire control or influence 
the result or timing of orders

[[Page 46640]]

submitted to the Topaz Exchange system, including through the 
Facilitation, Solicitation or Customer Cross processes.\300\ 
Accordingly, the Commission believes that the non-participation 
requirement will be met when orders are executed automatically through 
use of the Topaz Exchange system, including the Facilitation, 
Solicitation and Customer Cross processes.
---------------------------------------------------------------------------

    \293\ The member may cancel or modify the order, or modify the 
instructions for executing the order, but only from off the Exchange 
floor. See 1978 Release, supra note 288, at 43 FR 11547. The 
Commission has stated that the non-participation requirement is 
satisfied under such circumstances so long as such modifications or 
cancellations are also transmitted from off the floor. See id. 
(stating that the ``non-participation requirement does not prevent 
initiating members from canceling or modifying orders (or the 
instructions pursuant to which the initiating member wishes orders 
to be executed) after the orders have been transmitted to the 
executing member, provided that any such instructions are also 
transmitted from off the floor'').
    \294\ See Exchange 11(a) Request Letter, supra note 289.
    \295\ See id.
    \296\ See id.
    \297\ See id.
    \298\ See id.
    \299\ See id.
    \300\ See id.
---------------------------------------------------------------------------

    Fourth, in the case of a transaction effected for an account with 
respect to which the initiating member or an associated person thereof 
exercises investment discretion, neither the initiating member nor any 
associated person thereof may retain any compensation in connection 
with effecting the transaction, unless the person authorized to 
transact business for the account has expressly provided otherwise by 
written contract referring to Section 11(a) of the Act and Rule 11a2-
2(T).\301\ Topaz Exchange members trading for covered accounts over 
which they exercise investment discretion must comply with this 
condition in order to rely on the rule's exemption.\302\
---------------------------------------------------------------------------

    \301\ 17 CFR 240.11a2-2(T)(a)(2)(iv). In addition, Rule 11a2-
2(T)(d) requires a member or associated person authorized by written 
contract to retain compensation, in connection with effecting 
transactions for covered accounts over which such member or 
associated person thereof exercises investment discretion, to 
furnish at least annually to the person authorized to transact 
business for the account a statement setting forth the total amount 
of compensation retained by the member in connection with effecting 
transactions for the account during the period covered by the 
statement. See 17 CFR 240.11a2-2(T)(d). See also 1978 Release, supra 
note 288, at 43 FR 11548 (stating ``[t]he contractual and disclosure 
requirements are designed to assure that accounts electing to permit 
transaction-related compensation do so only after deciding that such 
arrangements are suitable to their interests'').
    \302\ See Exchange 11(a) Request Letter, supra note 289.
---------------------------------------------------------------------------

b. Section 11(a)(1)(G) and Rule 11a1-1(T)
    Section 11(a)(1)(G) of the Act provides an additional exemption 
from the general prohibition set forth in Section 11(a)(1) for any 
transaction for a member's own account, provided that: (i) Such member 
is primarily engaged in certain underwriting, distribution, and other 
activities generally associated with broker-dealers and whose gross 
income is derived principally from such business and related 
activities; and (ii) the transaction is effected in compliance with the 
rules of the Commission, which, as a minimum, assure that the 
transaction is not inconsistent with the maintenance of fair and 
orderly markets and yields priority, parity, and precedence in 
execution to orders for the account of persons who are not members or 
associated with members of the exchange.\303\ In addition, Rule 11a1-
1(T) under the Act specifies that a transaction effected on a national 
securities exchange for the account of a member which meets the 
requirements of Section 11(a)(1)(G)(i) of the Act is deemed, in 
accordance with the requirements of Section 11(a)(1)(G)(ii), to be not 
inconsistent with the maintenance of fair and orderly markets and to 
yield priority, parity, and precedence in execution to orders for the 
account of non-members or persons associated with non-members of the 
exchange, if such transaction is effected in compliance with certain 
requirements.\304\
---------------------------------------------------------------------------

    \303\ See 15 U.S.C. 78k(a)(1)(G).
    \304\ Rule 11a1-1(T)(a)(1)-(3) provides that each of the 
following requirements must be met: (1) A member must disclose that 
a bid or offer for its account is for its account to any member with 
whom such bid or offer is placed or to whom it is communicated, and 
any member through whom that bid or offer is communicated must 
disclose to others participating in effecting the order that it is 
for the account of a member; (2) immediately before executing the 
order, a member (other than the specialist in such security) 
presenting any order for the account of a member on the exchange 
must clearly announce or otherwise indicate to the specialist and to 
other members then present for the trading in such security on the 
exchange that he is presenting an order for the account of a member; 
and (3) notwithstanding rules of priority, parity, and precedence 
otherwise applicable, any member presenting for execution a bid or 
offer for its own account or for the account of another member must 
grant priority to any bid or offer at the same price for the account 
of a person who is not, or is not associated with, a member, 
irrespective of the size of any such bid or offer or the time when 
entered. See 17 CFR 240.11a1-1(T)(a)(1)-(3).
---------------------------------------------------------------------------

    Topaz Exchange represented that its Price Improvement Mechanism, or 
PIM, is a process set forth in Topaz Exchange Rule 723 whereby an EAM 
can provide price improvement opportunities for a transaction.\305\ As 
Topaz Exchange stated in its Exchange 11(a) Request Letter, Topaz 
Exchange's proposed PIM rules will require that Priority Customer 
interest, at any given price, be executed in full before Professional 
Orders and market maker quotes.\306\ Additionally, Topaz Exchange's 
proposed PIM rules will require non-member Professional Orders to be 
executed in full before any proprietary interest of members (i.e., 
proprietary interest from EAMs and market makers).\307\ Because Topaz 
Exchange Rule 723(d) will require Topaz Exchange members to yield 
priority to Priority Customers and non-member Professional Orders in 
the PIM process, the Commission believes that the proposal with respect 
to transactions effected through the PIM process will be consistent 
with Section 11(a)(1)(G) and Rule 11a1-1(T) thereunder.\308\ The 
Commission also reminds exchanges and their members, however, that, in 
addition to yielding priority to non-member orders at the same price, 
members must also meet the other requirements under Section 11(a)(1)(G) 
of the Act and Rule 11a1-1(T) thereunder (or satisfy the requirements 
of another exception) to effect transactions for their own accounts.
---------------------------------------------------------------------------

    \305\ The PIM is a process wherein an EAM may seek to facilitate 
an order it represents as agent, and/or a transaction wherein the 
EAM solicited interest to execute against an order it represents as 
agent (a ``Crossing Transaction''). A Crossing Transaction is 
comprised of the order the EAM represents as agent (the ``Agency 
Order'') and a counter-side order for the full size of the Agency 
Order (the ``Counter-Side Order''). The Counter-Side Order may 
represent interest for the Member's own account, or interest the 
Member has solicited from one or more other parties, or a 
combination of both. See Exchange 11(a) Request Letter, supra note 
289. See also Topaz Exchange Rule 723.
    \306\ See Exchange 11(a) Request Letter, supra note 289. See 
also Topaz Exchange Rule 723(d)(1).
    \307\ See Exchange 11(a) Request Letter, supra note 289. See 
also Topaz Exchange Rule 723(d)(3).
    \308\ See Securities Exchange Act Release No. 50819 (December 8, 
2004), 69 FR 75093 (December 15, 2004) (File No. SR-ISE-2003-06).
---------------------------------------------------------------------------

E. Discipline and Oversight of Members

    As noted above, one prerequisite for the Commission's grant of an 
exchange's application for registration is that a proposed exchange 
must be so organized and have the capacity to be able to carry out the 
purposes of the Act.\309\ Specifically, an exchange must be able to 
enforce compliance by its members and persons associated with its 
members with the Act and the rules and regulations thereunder and the 
rules of the exchange.\310\
---------------------------------------------------------------------------

    \309\ See 15 U.S.C. 78f(b)(1).
    \310\ See id.
---------------------------------------------------------------------------

    Topaz Exchange rules codify Topaz Exchange's disciplinary 
jurisdiction over its members, thereby facilitating its ability to 
enforce its members' compliance with its rules and the federal 
securities laws.\311\ Topaz Exchange's rules permit it to sanction 
members for violations of the Act and the rules and regulation 
thereunder and Topaz Exchange's rules by, among other things, expelling 
or suspending members; limiting members' activities, functions, or 
operations; fining or censuring members; suspending or barring a person 
from being associated with a member; or any other fitting sanction in 
accordance with Topaz Exchange rules.\312\
---------------------------------------------------------------------------

    \311\ See Topaz Exchange Rule 1600(a) (which incorporates by 
reference ISE Rule 1600(a)).
    \312\ See id. See also MIAX Rule 1000 and BOX Exchange Rule 
12000 Series (containing identical provisions).
---------------------------------------------------------------------------

    Topaz Exchange's disciplinary and oversight functions will be 
administered in accordance with Chapter 16 of the Topaz Exchange rules, 
which

[[Page 46641]]

incorporates by reference Chapter 16 of ISE rules, governing 
disciplinary jurisdiction. Unless delegated to another SRO pursuant to 
the terms of an effective 17d-2 Plan,\313\ Topaz Exchange regulatory 
staff (including regulatory staff of another SRO that may be acting on 
Topaz Exchange's behalf pursuant to a regulatory services agreement) 
will, among other things, investigate potential securities laws 
violations and initiate charges pursuant to Topaz Exchange rules.\314\
---------------------------------------------------------------------------

    \313\ See supra notes 154-156 and accompanying text (concerning 
the multiparty 17d-2 Plans to which Topaz Exchange has committed to 
join).
    \314\ See Topaz Exchange Rule 1602 (which incorporates by 
reference ISE Rule 1602). As noted above, Topaz Exchange has entered 
into an RSA with FINRA and a FMA with ISE under which FINRA and ISE, 
respectively, will perform certain regulatory functions on behalf of 
Topaz Exchange. Topaz Exchange may perform some or all of the 
functions specified in Chapter 16 of the Topaz Exchange Rules. See 
Topaz Exchange Rule 1615 (which incorporates by reference ISE Rule 
1615).
---------------------------------------------------------------------------

    Upon a finding of probable cause of a violation within the 
disciplinary jurisdiction of Topaz Exchange and where further 
proceedings are warranted,\315\ Topaz Exchange will conduct a hearing 
on disciplinary matters before a professional hearing officer \316\ and 
two members of the Business Conduct Committee \317\ (``Panel'').\318\ 
The Topaz Exchange member (or its associated person) or the Topaz 
Exchange regulatory staff may petition for review of the Panel's 
decision by the Topaz Exchange Board.\319\ Any review will be conducted 
by the Topaz Exchange Board or a committee thereof composed of at least 
three of its directors, at least one of which shall be an Industry 
Director \320\ (whose decision must be ratified by the Topaz Exchange 
Board).\321\ In addition, the Topaz Exchange Board on its own motion 
may order review of a disciplinary decision.\322\ The Topaz Exchange 
Board may affirm, reverse, or modify, in whole or in part, the Panel's 
decision.\323\ The decision of the Topaz Exchange Board will be in 
writing and will be final.\324\
---------------------------------------------------------------------------

    \315\ See Topaz Exchange Rule 1604 (which incorporates by 
reference ISE Rule 1604). If there is probable cause for finding a 
violation, Topaz Exchange's regulatory staff will prepare a 
statement of charges including the allegations and specifying the 
provisions of the Act and the rules and regulations promulgated 
thereunder, provisions of the Topaz Exchange Constitution or rules, 
or interpretations or resolutions of which such acts are in 
violation. The CRO must approve the statement of charges.
    \316\ See Topaz Exchange Rule 1606 (which incorporates by 
reference ISE Rule 1606); see also Topaz Exchange Rule 1615, 
Supplemental Material .01 (which incorporates by reference ISE Rule 
1615, Supplemental Material .01).
    \317\ Pursuant to a Resolution of the Topaz Exchange Board, the 
President and CEO shall establish Topaz Exchange's Business Conduct 
Committee, pursuant to a charter. The Committee shall consist of no 
more than 21 persons, all of whom are employees of members of Topaz 
Exchange, representing members as follows: at least three persons 
shall represent PMMs; at least three persons shall represent CMMs 
that are not also PMMs; and at least four persons shall represent 
EAMs that neither are, nor are affiliated with, a PMM or CMM. See 
Amendment No. 3.
    \318\ See Topaz Exchange Rule 1606 (which incorporates by 
reference ISE Rule 1606). A Panel may make a determination without a 
hearing and may impose a penalty as to violations that the member or 
associated person has admitted or has failed to answer or that 
otherwise do not appear to be in dispute. See Topaz Exchange Rule 
1608 (which incorporates by reference ISE Rule 1608). A member or 
associated person alleged to have committed a disciplinary violation 
may submit a written offer of settlement to the Panel, or CRO if a 
Panel is not yet been appointed, which the Panel or CRO may accept 
or reject. See Topaz Exchange Rule 1609 (which incorporates by 
reference ISE Rule 1609). If the second offer of settlement is 
rejected (such decision is not subject to review), a hearing will 
proceed in accordance with Topaz Exchange Rule 1606 (which 
incorporates by reference ISE Rule 1606). See also Topaz Exchange 
Rule 1609 (which incorporates by reference ISE Rule 1609).
    \319\ See Topaz Exchange Rule 1610 (which incorporates by 
reference ISE Rule 1610).
    \320\ See Topaz Exchange Rule 1704 (which incorporates by 
reference ISE Rule 1704) (detailing the composition of the Appeals 
Committee); see also Amendment No. 3. Any director who participated 
in a matter before it was appealed to the Topaz Exchange Board shall 
not participate in any review of the action by the Board concerning 
the matter. See Topaz Exchange Rule 1704.
    \321\ See Topaz Exchange Rule 1610 (which incorporates by 
reference ISE Rule 1610).
    \322\ See id.
    \323\ See id.
    \324\ See id.
---------------------------------------------------------------------------

    Appeals from any determination that impacts access to Topaz 
Exchange, such as termination or suspension of membership, will be 
instituted under, and governed by, the provisions in the Chapter 17 of 
the Topaz Exchange rules, which incorporates by reference the 
provisions in Chapter 17 of ISE rules. Topaz Exchange's Chapter 17 
applies to persons economically aggrieved by any of the following 
actions of Topaz Exchange including, but not limited to: (a) Denial of 
an application to become a Member; (b) barring a person from becoming 
associated with a Member; and (c) limiting or prohibiting services 
provided by the Topaz Exchange or services of any exchange member.\325\
---------------------------------------------------------------------------

    \325\ See Topaz Exchange Rule 1700 (which incorporates by 
reference ISE Rule 1700). As noted above, Topaz Exchange has entered 
into an RSA with FINRA and a FMA with ISE under which FINRA and ISE, 
respectively, will perform certain regulatory functions on behalf of 
Topaz Exchange. For example, FINRA may perform some or all of the 
functions specified in Chapter 17 of Topaz Exchange rules. See supra 
notes 158-160 and accompanying text. See also Topaz Exchange Rule 
1706 (which incorporates by reference ISE Rule 1706).
---------------------------------------------------------------------------

    Any person aggrieved by an action of Topaz Exchange within the 
scope of the Chapter 17 may file a written application to be heard 
within thirty days \326\ after such action has been taken.\327\ 
Applications for hearing and review will be referred to the Business 
Conduct Committee, which will appoint a hearing panel of no less than 
three members of such Committee.\328\ The decision of the hearing panel 
made pursuant to Chapter 17 of the Topaz Exchange rules is subject to 
review by the Topaz Exchange Board, either on its own motion, or upon 
written request submitted by the applicant or the President of Topaz 
Exchange.\329\ The review will be conducted by the Topaz Exchange Board 
or a committee of the Topaz Exchange Board composed of at least three 
directors.\330\
---------------------------------------------------------------------------

    \326\ An applicant may file for an extension of time within 
thirty days of Topaz Exchange's action. An application for such an 
extension will be ruled upon by the Chairman of the Business Conduct 
Committee and is not subject to appeal. See Topaz Exchange Rule 1701 
(which incorporates by reference ISE Rule 1701).
    \327\ See Topaz Exchange Rule 1701 (which incorporates by 
reference ISE Rule 1701).
    \328\ See Topaz Exchange Rule 1702 (which incorporates by 
reference ISE Rule 1702).
    \329\ See Topaz Exchange Rule 1704 (which incorporates by 
reference ISE Rule 1704). The Topaz Exchange Board, or a committee 
of the Topaz Exchange Board, will have sole discretion to grant or 
deny either request. See id.
    \330\ See Topaz Exchange Rule 1704 (which incorporates by 
reference ISE Rule 1704). The Topaz Exchange Board or its designated 
committee may affirm, reverse, or modify in whole or in part, the 
decision of the hearing panel. The decision of the Topaz Exchange 
Board or its designated committee will be in writing and will be 
final. See Topaz Exchange Rule 1704 (which incorporates by reference 
ISE Rule 1704).
---------------------------------------------------------------------------

    The Commission finds that Topaz Exchange's proposed disciplinary 
and oversight rules and structure, as well as its proposed process for 
persons economically aggrieved by certain Topaz Exchange actions, are 
consistent with the requirements of Sections 6(b)(6) and 6(b)(7) of the 
Act \331\ in that they provide fair procedures for the disciplining of 
members and persons associated with members. The Commission further 
finds that the proposed Topaz Exchange rules, which incorporate by 
reference ISE rules, are designed to provide Topaz Exchange with the 
ability to comply, and with the authority 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 Topaz 
Exchange.\332\ The Commission notes that Topaz Exchange's proposed 
disciplinary and oversight rules and

[[Page 46642]]

structures are similar to the rules of other exchanges.\333\
---------------------------------------------------------------------------

    \331\ 15 U.S.C. 78f(b)(6) and (b)(7), respectively.
    \332\ See Section 6(b)(1) of the Act, 15 U.S.C. 78f(b)(1).
    \333\ See, e.g., MIAX Order, supra note 30, and BOX Order, supra 
note 39.
---------------------------------------------------------------------------

F. Listing Requirements

    Topaz Exchange does not intend to offer original listings when it 
commences operations. Instead, Topaz Exchange will list and trade only 
standardized option contracts that are listed on other national 
securities exchanges and cleared by the Options Clearing 
Corporation.\334\ Topaz Exchange's listing rules, including the 
criteria for the underlying securities of the options to be traded, 
incorporate by reference all of the listing rules of ISE.\335\ The 
Commission finds that Topaz Exchange's proposed initial and continued 
listing rules are consistent with the Act, including Section 
6(b)(5),\336\ in that they are designed to protect investors and the 
public interest and to promote just and equitable principles of trade. 
Before beginning operation, Topaz Exchange will need to become a 
participant in the Plan for the Purpose of Developing and Implementing 
Procedures Designed to Facilitate the Listing and Trading of 
Standardized Options Submitted Pursuant to Section 11A(a)(3)(B) of the 
Act (``OLPP'').\337\ In addition, before beginning operation, Topaz 
Exchange will need to become a participant in the Options Clearing 
Corporation.
---------------------------------------------------------------------------

    \334\ See Exhibit H to Topaz Exchange Form 1 Application.
    \335\ See Topaz Exchange Rule 500 Series (which incorporates by 
reference ISE Rule 500 Series) (Securities Traded on the Exchange). 
See also MIAX Rule 400 Series and BOX Rule 5000 Series.
    \336\ 15 U.S.C. 78f(b)(5).
    \337\ 15 U.S.C. 78k-1(a)(3)(B).
---------------------------------------------------------------------------

III. Exemption From Section 19(b) of the Act With Regard to ISE, CBOE, 
NYSE, and FINRA Rules Incorporated by Reference

    Topaz Exchange proposes to incorporate by reference certain ISE, 
CBOE, NYSE and FINRA rules.\338\ Thus, for certain Topaz Exchange 
rules, Topaz Exchange members will comply with a Topaz Exchange rule by 
complying with the referenced ISE, CBOE, NYSE or FINRA rule.
---------------------------------------------------------------------------

    \338\ Specifically, Topaz Exchange proposes to incorporate by 
reference the following ISE Rules: Chapter 4 (Business Conduct), 
Chapter 5 (Securities Traded on the Exchange), Chapter 6 (Doing 
Business with the Public), Chapter 10 (Closing Transactions), 
Chapter 11 (Exercises and Deliveries), Chapter 12 (Margins), Chapter 
13 (Net Capital Requirements), Chapter 14 (Records, Reports and 
Audits), Chapter 15 (Summary Suspension), Chapter 16 (Discipline), 
Chapter 17 (Hearings and Review), Chapter 18 (Arbitration), Chapter 
19 (Order Protection; Locked and Crossed Market), Chapter 20 (Index 
Rules), Chapter 22 (Rate-Modified Foreign Currency Options Rules). 
The following rules are cross-referenced in the ISE rules: ISE Rule 
1202 (Margin Requirements) cross-references the same CBOE and NYSE 
rules that may be in effect from time to time; ISE Rule 1615 
(Disciplinary Functions) cross-references the FINRA Code of 
Procedure and ISE Rule 1800 cross-references the 12000 and 13000 
Series of the FINRA Manual and FINRA Rule 2268.
---------------------------------------------------------------------------

    In connection with the proposal to incorporate the ISE, CBOE, NYSE 
and FINRA rules by reference, Topaz Exchange requested, pursuant to 
Rule 240.0-12 under the Act,\339\ an exemption under Section 36 of the 
Act from the rule filing requirements of Section 19(b) of the Act for 
changes to the Topaz Exchange rules that are effected solely by virtue 
of a change to a cross-referenced ISE, CBOE, NYSE or FINRA rule.\340\ 
Topaz Exchange proposes to incorporate by reference categories of 
rules, rather than individual rules within a category, that are not 
trading rules. In addition, Topaz Exchange agrees to provide written 
notice to its members whenever FINRA, ISE, CBOE or NYSE proposes a 
change to a cross-referenced rule \341\ and whenever any such proposed 
changes are approved by the Commission or otherwise become 
effective.\342\
---------------------------------------------------------------------------

    \339\ 17 CFR 240.0-12.
    \340\ See Letter from Michael Simon, General Counsel, Secretary 
and Chief Regulatory Officer, Topaz Exchange, to Elizabeth M. 
Murphy, Secretary, Commission, dated December 14, 2012 (``Section 
19(b) Exemption Request'').
    \341\ See id.
    \342\ Topaz Exchange will provide such notice through a posting 
on the same Web site location where Topaz Exchange posts its own 
rule filings pursuant to Rule 19b-4 under the Act, within the 
required time frame. The Web site posting will include a link to the 
location on the FINRA, ISE, CBOE or NYSE Web site where FINRA's, 
ISE's, CBOE's or NYSE's proposed rule change is posted. See id.
---------------------------------------------------------------------------

    Using the authority under Section 36 of the Act, the Commission 
previously exempted certain SROs from the requirement to file proposed 
rule changes under Section 19(b) of the Act.\343\ The Commission is 
hereby granting Topaz Exchange's request for exemption, pursuant to 
Section 36 of the Act, from the rule filing requirements of Section 
19(b) of the Act with respect to the rules that Topaz Exchange proposes 
to incorporate by reference. The exemption is conditioned upon Topaz 
Exchange providing written notice to Topaz Exchange members whenever 
FINRA, ISE, CBOE or NYSE proposes to change an incorporated by 
reference rule and when the Commission approves any such changes. The 
Commission believes that the exemption is appropriate in the public 
interest and consistent, with the protection of investors because it 
will promote more efficient use of Commission's and SROs' resources by 
avoiding duplicative rule filings based on simultaneous changes to 
identical rule text sought to be implemented by more than one SRO.
---------------------------------------------------------------------------

    \343\ See, e.g., DirectEdge Exchanges Order, supra note 70, BATS 
Order, supra note 29, C2 Order, supra note 169, Nasdaq Order, supra 
note 29 and NOM Approval Order, supra note 164.
---------------------------------------------------------------------------

IV. Conclusion

    It is ordered that the application of Topaz Exchange for 
registration as a national securities exchange be, and it hereby is, 
granted.
    It is furthered ordered that operation of Topaz Exchange is 
conditioned on the satisfaction of the requirements below:
    A. Participation in National Market System Plans Relating to 
Options Trading. Topaz Exchange must join: (1) The Plan for the 
Reporting of Consolidated Options Last Sale Reports and Quotation 
Information (Options Price Reporting Authority); (2) the OLPP; (3) the 
Linkage Plan; and (4) the Plan of the Options Regulatory Surveillance 
Authority.
    B. Participation in Multiparty Rule 17d-2 Plans. Topaz Exchange 
must become a party to the multiparty Rule 17d-2 agreements concerning 
options sales practice regulation and market surveillance.
    C. Participation in the Options Clearing Corporation. Topaz 
Exchange must become an Options Clearing Corporation participant 
exchange.
    D. Participation in the Intermarket Surveillance Group. Topaz 
Exchange must join the Intermarket Surveillance Group.
    E. Effective Regulation. Topaz Exchange must have, and represent in 
a letter to the staff in the Commission's Office of Compliance 
Inspections and Examinations that it has, adequate procedures and 
programs in place to effectively regulate Topaz Exchange.
    F. Trade Processing and Exchange Systems. Topaz Exchange must have, 
and represent in a letter to the staff in the Commission's Division of 
Trading and Markets that it has, adequate procedures and programs in 
place, as detailed in Commission Automation Policy Review guidelines, 
to effectively process trades and maintain the confidentiality, 
integrity, and availability of Topaz Exchange's systems.\344\
---------------------------------------------------------------------------

    \344\ On November 16, 1989, the Commission published its first 
Automation Review Policy (``ARP I''), in which the Commission 
created a voluntary framework for SROs to establish comprehensive 
planning and assessment programs to determine systems capacity and 
vulnerability. On May 9, 1991, the Commission published its second 
Automation Review Policy (``ARP II'') to clarify the types of review 
and reports expected from SROs. See Securities Exchange Act Release 
Nos. 27445 (November 16, 1989), 54 FR 48703 (November 24, 1989) and 
29185 (May 9, 1991), 56 FR 22490 (May 15, 1991). The Commission has 
proposed Regulation Systems Compliance and Integrity, which, if 
adopted, would replace this policy. See Securities Exchange Act 
Release No. 69077 (March 8, 2013), 78 FR 18084 (March 25, 2013) 
(File No. S7-01-13).

---------------------------------------------------------------------------

[[Page 46643]]

    It is further ordered, pursuant to Section 36 of the Act,\345\ that 
Topaz Exchange shall be exempted from the rule filing requirements of 
Section 19(b) of the Act with respect to the FINRA, ISE, CBOE and NYSE 
rules that Topaz Exchange proposes to incorporate by reference, subject 
to the conditions specified in this Order that Topaz Exchange provide 
written notice to Topaz Exchange members whenever FINRA, ISE, CBOE or 
NYSE propose to change an incorporated by reference rule and when the 
Commission approves any such changes.
---------------------------------------------------------------------------

    \345\ 15 U.S.C. 78mm.

    By the Commission.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-18474 Filed 7-31-13; 8:45 am]
BILLING CODE 8011-01-P


