[Federal Register Volume 83, Number 227 (Monday, November 26, 2018)]
[Notices]
[Pages 60536-60539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25738]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-84636; File No. SR-NYSEAMER-2018-49]


Self-Regulatory Organizations; NYSE American LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change To Amend 
Article II, Section 2.03(h)(ii) and Article VI of Its Operating 
Agreement

November 20, 2018.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given 
that on November 9, 2018, NYSE American LLC (``Exchange'' or ``NYSE 
American'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the Exchange. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C.78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.

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[[Page 60537]]

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Article II, Section 2.03(h)(ii) and 
Article VI of its operating agreement to harmonize certain provisions 
with similar provisions in the governing documents of the Exchange's 
national securities exchange affiliates and parent companies, as well 
as make clarifying, technical and conforming changes. The proposed rule 
change is available on the Exchange's website at www.nyse.com, at the 
principal office of the Exchange, and at the Commission's Public 
Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
(1) Generally
    The Exchange proposes to amend Article II, Section 2.03(h)(ii) 
(Board) and Article VI (Indemnification and Exculpation) of the 
Eleventh Amended and Restated Operating Agreement of the Exchange 
(``Operating Agreement'') to harmonize certain provisions with similar 
provisions in the governing documents of the Exchange's national 
securities exchange affiliates \4\ and parent companies, as well as 
make clarifying, technical and conforming changes.
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    \4\ The Exchange has four registered national securities 
exchange affiliates: the New York Stock Exchange LLC (``NYSE''), 
NYSE Arca, Inc. (``NYSE Arca''), NYSE National, Inc. (``NYSE 
National''), and Chicago Stock Exchange, Inc. (``CHX'' and together 
with the Exchange, NYSE, NYSE Arca, and NYSE National, the ``NYSE 
Group Exchanges''). CHX has filed to change its name to NYSE 
Chicago, Inc. See Exchange Act Release No. 84494 (October 26, 2018), 
83 FR 54953 (November 1, 2018) (SR-CHX-2018-05) (``NYSE Chicago 
Release'') (notice of filing and immediate effectiveness of proposal 
to reflect name changes of the Exchange and its direct parent 
company and to amend certain corporate governance provisions). The 
rule changes set forth in the NYSE Chicago Release will become 
operative upon the Second Amended and Restated Certificate of 
Incorporation of Chicago Stock Exchange, Inc. (``NYSE Chicago 
Certificate'') becoming effective pursuant to its filing with the 
Secretary of State of the State of Delaware.
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    The Exchange is owned by NYSE Group, Inc., which in turn is 
indirectly wholly owned by NYSE Holdings LLC (``NYSE Holdings''). NYSE 
Holdings is a wholly owned subsidiary of Intercontinental Holdings, 
Inc. (``ICE Holdings''), which is in turn wholly owned by the 
Intercontinental Exchange, Inc. (``ICE'').\5\
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    \5\ See Exchange Act Release No. 72156 (May 13, 2014), 79 FR 
28782 (May 19, 2014) (SR-NYSEMKT-2014-41) (notice of filing and 
immediate effectiveness of proposed rule change relating to name 
changes of its ultimate parent and its indirect parents).
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    The Exchange operates as a separate self-regulatory organization 
and has rules, membership rosters and listings distinct from the rules, 
membership rosters and listings of the other NYSE Group Exchanges. At 
the same time, however, the Exchange believes it is important for each 
of the NYSE Group Exchanges to have a consistent approach to corporate 
governance in certain matters, to simplify complexity and create 
greater consistency among the NYSE Group Exchanges.\6\ The proposed 
amendments to the Operating Agreement reflect the expectation that the 
Exchange will continue to be operated with a governance structure 
substantially similar to that of other NYSE Group Exchanges.
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    \6\ See NYSE Chicago Release, supra note 4, at 54953.
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    The proposed amendment to Article II, Section 2.03(h)(ii) is based 
on the Second Amended and Restated By-Laws of NYSE Chicago, Inc. 
(``NYSE Chicago Bylaws'').\7\ The proposed amendments to Article VI are 
based on the Eighth Amended and Restated Bylaws of Intercontinental 
Exchange, Inc. (``ICE Bylaws'') and the Sixth Amended and Restated 
Bylaws of Intercontinental Exchange Holdings, Inc. (``ICE Holdings 
Bylaws'').
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    \7\ The NYSE Chicago Bylaws will become operative when the NYSE 
Chicago Certificate becomes effective pursuant to its filing with 
the Secretary of State of the State of Delaware. Id.
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    The Exchange proposes to amend the Operating Agreement as follows.

Article II, Section 2.03(h)(ii)

    Article II, Section 2.03(h)(ii) establishes the powers and 
responsibilities of the Regulatory Oversight Committee (``ROC''), and 
is substantially the same as the related provisions in the governing 
documents of the other NYSE Group Exchanges.\8\ Among other things, the 
provision states that ``[t]he Board may, on affirmative vote of a 
majority of directors, at any time remove a member of the ROC for 
cause.'' The Exchange proposes to add language clarifying that the 
majority affirmative vote requirement is based on the ``directors then 
in office,'' as opposed to total number of seats on the Board. The 
change would be consistent with Article IV, Section 6 of the NYSE 
Chicago Bylaws.\9\
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    \8\ See Eleventh Amended and Restated Operating Agreement of New 
York Stock Exchange LLC, Article II, Section 2.03(h)(ii); NYSE Arca 
Rule 3.3; Fifth Amended and Restated Bylaws of NYSE National, Inc., 
Article V, Section 5.6; NYSE Chicago Bylaws, Article IV, Section 6.
    \9\ See NYSE Chicago Release, supra note 4, at 54961. The 
Exchange understands that the NYSE, NYSE National and NYSE Arca 
propose to file similar changes to their respective ROC provisions.
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Article VI

Section 6.02 (Indemnification)

    Current Section 6.02 includes provisions related to indemnification 
by the Exchange. As a wholly-owned subsidiary of ICE, the Exchange 
believes it appropriate to harmonize the Exchange's indemnification 
provisions with those of ICE and the Exchange's intermediate holding 
company, ICE Holdings.\10\ The same change was made to Article VI of 
the NYSE Chicago Bylaws.\11\
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    \10\ See ICE Bylaws, Article X, Section 10.6, and ICE Holdings 
Bylaws, Article X, Section 10.6.
    \11\ See NYSE Chicago Release, supra note 4, at 54962-54963. The 
Exchange understands that the NYSE, NYSE National and NYSE Arca 
propose to file similar changes to their respective indemnification 
provisions.
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    Accordingly, the Exchange proposes to delete the text of Section 
6.02 in its entirety and replace it with proposed text that is 
substantially similar to the CHX, ICE and ICE Holdings provisions, with 
the exception of changes to be consistent with the Operating 
Agreement's terminology.\12\ The proposed text follows:
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    \12\ For example, proposed Section 6.02 uses ``officer'' instead 
of ``Senior Officers,'' ``Company'' instead of ``Corporation,'' and 
``Section 6.02'' instead of ``Section 10.6.''
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    (a) The Company shall, to the fullest extent permitted by Law (as 
defined below), as such Law may be amended and supplemented from time 
to time, indemnify any director or officer made, or threatened to be 
made, a party to any action, suit or proceeding, whether criminal, 
civil, administrative or investigative, by reason of being a director 
or officer of the Company or a predecessor company or, at the Company's 
request, a director, officer, partner, member, employee or agent of 
another entity; provided, however, that the Company shall indemnify any 
director or officer in connection with a proceeding initiated by such 
person

[[Page 60538]]

only if such proceeding was authorized in advance by the Board of 
Directors of the Company. The indemnification provided for in this 
Section 6.02 shall: (i) Not be deemed exclusive of any other rights to 
which those indemnified may be entitled under any bylaw, agreement or 
vote of stockholders or disinterested directors or otherwise, both as 
to action in their official capacities and as to action in another 
capacity while holding such office; (ii) continue as to a person who 
has ceased to be a director or officer; and (iii) inure to the benefit 
of the heirs, executors and administrators of an indemnified person.
    (b) Expenses incurred by any such person in defending a civil or 
criminal action, suit or proceeding by reason of the fact that he is or 
was a director or officer of the Company (or was serving at the 
Company's request as a director, officer, partner, member, employee or 
agent of another entity) shall be paid by the Company in advance of the 
final disposition of such action, suit or proceeding upon receipt of an 
undertaking by or on behalf of such director or officer to repay such 
amount if it shall ultimately be determined that he or she is not 
entitled to be indemnified by the Company as authorized by Law. 
Notwithstanding the foregoing, the Company shall not be required to 
advance such expenses to a person who is a party to an action, suit or 
proceeding brought by the Company and approved by a majority of the 
Board of Directors of the Company that alleges willful misappropriation 
of corporate assets by such person, disclosure of confidential 
information in violation of such person's fiduciary or contractual 
obligations to the Company or any other willful and deliberate breach 
in bad faith of such person's duty to the Company or its stockholders.
    (c) The foregoing provisions of this Section 6.02 shall be deemed 
to be a contract between the Company and each director or officer who 
serves in such capacity at any time while this bylaw is in effect, and 
any repeal or modification thereof shall not affect any rights or 
obligations then existing with respect to any state of facts then or 
theretofore existing or any action, suit or proceeding theretofore or 
thereafter brought based in whole or in part upon any such state of 
facts. The rights provided to any person by this bylaw shall be 
enforceable against the Company by such person, who shall be presumed 
to have relied upon it in serving or continuing to serve as a director 
or officer or in such other capacity as provided above.
    (d) The Board of Directors in its discretion shall have power on 
behalf of the Company to indemnify any person, other than a director or 
officer, made or threatened to be made a party to any action, suit or 
proceeding, whether criminal, civil, administrative or investigative, 
by reason of the fact that such person, or his or her testator or 
intestate, is or was an officer, employee or agent of the Company or, 
at the Company's request, is or was serving as a director, officer, 
partner, member, employee or agent of another company or other entity.
    (e) For purposes of this Section 6.02, ``Law'' shall mean the laws 
governing the indemnification of, and advancement of expenses to, 
directors, officers, employees and agents of Delaware corporations, 
including Section 145 of the General Corporation Law of the State of 
Delaware (``Section 145''), with such laws being applicable to the 
Exchange as if the Exchange were a Delaware corporation. To assure 
indemnification under this Section 6.02 of all directors, officers, 
employees and agents who are determined by the Company or otherwise to 
be or to have been ``fiduciaries'' of any employee benefit plan of the 
Company that may exist from time to time, Section 145 shall, for the 
purposes of this Section 6.02, be interpreted as follows: An ``other 
enterprise'' shall be deemed to include such an employee benefit plan, 
including without limitation, any plan of the Company that is governed 
by the Act of Congress entitled ``Employee Retirement Income Security 
Act of 1974,'' as amended from time to time; the Company shall be 
deemed to have requested a person to serve an employee benefit plan 
where the performance by such person of his duties to the Company also 
imposes duties on, or otherwise involves services by, such person to 
the plan or participants or beneficiaries of the plan; excise taxes 
assessed on a person with respect to an employee benefit plan pursuant 
to such Act of Congress shall be deemed ``fines.''

Section 6.03 (Non Exclusivity of Rights)

    Current Section 6.03 states that the rights to indemnification and 
the payment of expenses conferred are not exclusive of any other right 
a person has. Because the non-exclusivity of rights would now be 
addressed in the final sentence of proposed Section 6.02(a), the 
Exchange proposes to delete Section 6.03 in its entirety. The deletion 
would be consistent with the indemnity provisions of the ICE, ICE 
Holdings and NYSE Chicago Bylaws, which do not have separate provisions 
regarding the non-exclusivity of rights.\13\
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    \13\ See ICE Bylaws, Article X; ICE Holdings Bylaws, Article X; 
and NYSE Chicago Bylaws, Article VI.
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    The remaining sections of Article VI would be renumbered 
accordingly.
Additional Proposed Amendments
    The Exchange proposes to make technical and conforming changes to 
the title, recitals and signature page of the Operating Agreement.\14\
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    \14\ The Operating Agreement was last amended in March 2018. See 
Exchange Act Release No. 13161 (March 22, 2018), 83 FR 13161 (March 
27, 2018) (SR-NYSEAMER-2018-10); see also Exhibit 5B to SR-NYSEAMER-
2018-10 (March 13, 2018).
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Exchange Act,\15\ in general, and furthers the 
objectives of Section 6(b)(1) \16\ in particular, in that it enables 
the Exchange to be so organized as to have the capacity to be able to 
carry out the purposes of the Exchange Act and to comply, and to 
enforce compliance by its exchange members and persons associated with 
its exchange members, with the provisions of the Exchange Act, the 
rules and regulations thereunder, and the rules of the Exchange. The 
Exchange also believes that the proposed rule change is consistent with 
Section 6(b)(5) of the Exchange Act,\17\ in that it is designed to 
prevent fraudulent and manipulative acts and practices, to promote just 
and equitable principles of trade, to foster cooperation and 
coordination with persons engaged in facilitating transactions in 
securities, to remove impediments to and perfect the mechanism of a 
free and open market and a national market system and, in general, to 
protect investors and the public interest.
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    \15\ 15 U.S.C. 78f(b).
    \16\ 15 U.S.C. 78f(b)(1).
    \17\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed amendments to the Operating 
Agreement would contribute to the orderly operation of the Exchange and 
would enable the Exchange to be so organized as to have the capacity to 
carry out the purposes of the Exchange Act and comply with the 
provisions of the Exchange Act by its members and persons associated 
with members. The proposed changes would create greater conformity 
between the ROC and indemnification provisions of the Operating 
Agreement and those of the governing documents of CHX, ICE and ICE 
Holdings. The Exchange believes that such conformity would streamline 
the NYSE Group Exchanges' corporate

[[Page 60539]]

processes, create more equivalent governance processes among them, and 
also provide clarity to the Exchange's members, which is beneficial to 
both investors and the public interest. At the same time, the Exchange 
will continue to operate as a separate self-regulatory organization and 
to have rules, membership rosters and listings distinct from the rules, 
membership rosters and listings of the other NYSE Group Exchanges.
    For the same reason, the Exchange believes that the greater 
consistency among the governing documents of the NYSE Group Exchanges, 
ICE and ICE Holdings would promote the maintenance of a fair and 
orderly market, the protection of investors and the protection of the 
public interest. Indeed, the proposed amendments would make the 
corporate requirements and administrative processes relating to the 
Board and ROC more similar to those of CHX, which have been established 
as fair and designed to protect investors and the public interest.\18\
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    \18\ See, e.g. NYSE Chicago Release, supra note 3; and Exchange 
Act Release Nos. 83303 (May 22, 2018), 83 FR 24517 (May 29, 2018) 
(SR-CHX-2018-004).
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    The proposed amendments to effect non-substantive technical and 
conforming changes would remove impediments to and perfect the 
mechanism of a free and open market by ensuring that persons subject to 
the Exchange's jurisdiction, regulators, and the investing public can 
more easily navigate and understand the governing documents. The 
Exchange further believes that the proposed amendments would not be 
inconsistent with the public interest and the protection of investors 
because investors will not be harmed and in fact would benefit from 
increased transparency and clarity, thereby reducing potential 
confusion.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Exchange Act. The proposed rule 
change is not intended to address competitive issues but rather is 
concerned solely with the corporate governance and administration of 
the Exchange.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the 
proposed rule change.

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

    The Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \19\ and Rule 19b-4(f)(6) thereunder.\20\ 
Because the proposed rule change does not: (i) Significantly affect the 
protection of investors or the public interest; (ii) impose any 
significant burden on competition; and (iii) become operative prior to 
30 days from the date on which it was filed, or such shorter time as 
the Commission may designate, if consistent with the protection of 
investors and the public interest, the proposed rule change has become 
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
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    \19\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \20\ 17 CFR 240.19b-4(f)(6).
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    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings under 
Section 19(b)(2)(B) \21\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \21\ 15 U.S.C. 78s(b)(2)(B).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSEAMER-2018-49 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090.
    All submissions should refer to File Number SR-NYSEAMER-2018-49. 
This file number should be included on the subject line if email is 
used. To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's internet website (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for website 
viewing and printing in the Commission's Public Reference Room, 100 F 
Street NE, Washington, DC 20549, on official business days between the 
hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be 
available for inspection and copying at the principal office of the 
Exchange. All comments received will be posted without change. Persons 
submitting comments are cautioned that we do not redact or edit 
personal identifying information from comment submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NYSEAMER-2018-49 and should 
be submitted on or before December 17, 2018.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\22\
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    \22\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-25738 Filed 11-23-18; 8:45 am]
 BILLING CODE 8011-01-P


