[Federal Register Volume 84, Number 204 (Tuesday, October 22, 2019)]
[Notices]
[Pages 56507-56509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22932]



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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-87317; File No. SR-NYSEAMER-2019-42]


Self-Regulatory Organizations; NYSE American LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Change To Amend the 
Certificate of Incorporation of Intercontinental Exchange, Inc.

October 16, 2019.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on October 3, 2019, NYSE American LLC (``NYSE American'' or the 
``Exchange'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The Exchange proposes to amend the certificate of incorporation of 
Intercontinental Exchange, Inc. (``ICE'') to make a technical change 
updating the registered office and registered agent in the State of 
Delaware and make non-substantive and conforming changes. The proposed 
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 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend the certificate of incorporation of 
ICE to make a technical change updating the registered office and 
registered agent in the State of Delaware and make non-substantive and 
conforming changes.
    The proposed amendments to the certificate of incorporation were 
approved by the Board of Directors of ICE on September 19, 2019. The 
Exchange proposes that the amendments would be effective upon filing 
with the Secretary of State of the State of Delaware.
Change in Registered Office and Registered Agent
    ICE is a corporation organized under the laws of the State of 
Delaware. As such, ICE is required to have and maintain a registered 
office and registered agent in the State of Delaware.\3\ The Exchange 
proposes to change the address of ICE's registered office and the name 
of ICE's registered agent, which would make them consistent with the 
governing documents of the Exchange and its intermediate holding 
companies.\4\
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    \3\ See Del. Code tit 8, Sec. Sec.  131 and 132.
    \4\ See Securities Exchange Release Nos. 82637 (February 6, 
2018), 83 FR 6055 (February 12, 2018) (notice of filing and 
immediate effectiveness of proposed change to amend certain of the 
governing documents of its intermediate parent companies) (SR-
NYSEAmer-2018-003); and 82923 (March 22, 2018), 83 FR 13161 (March 
27, 2018) (SR-NYSEAmer-2018-10) (notice of filing and immediate 
effectiveness of proposed change amending certain governing 
documents of the Exchange and NYSE Market, Inc.).
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    In order to implement the change, ICE intends to file with the 
Secretary of State of the State of Delaware a Certificate of Change of 
Registered Agent and/or Registered Office (``Certificate of 
Change''),\5\ which will change the address of its registered office 
and the name of its registered agent set forth in the Fourth Amended 
and Restated Certificate of Incorporation of ICE (``Fourth 
Certificate''). Immediately thereafter, ICE intends to file with the 
Secretary of State of the State of Delaware the Fifth Amended and 
Restated Certificate of Incorporation of ICE (the ``Fifth 
Certificate''), which will integrate the changes made by the 
Certificate of Change.
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    \5\ See Del. Code tit 8, Sec.  133.
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    With respect to the change in the registered agent and registered 
office, in the Fifth Certificate, Article II would identify United 
Agent Group Inc. as the registered agent and provide that the address 
of the registered office in the State of Delaware, County of New 
Castle, is 3411 Silverside Road, Tatnall Building No. 104, Wilmington, 
Delaware 19810. Currently, Article II of the Fourth Certificate 
identifies 1209 Orange Street, Wilmington, Delaware 19801 as the 
address of the registered office in the State of Delaware, County of 
New Castle, and provides that the name of its registered agent at such 
address is The Corporation Trust Company.
Conforming Changes
    The Exchange proposes to make technical conforming changes to the 
Fifth Certificate.
    The General Corporation Law of the State of Delaware (``DGCL'') 
provides that the board of directors of a corporation may adopt a 
restated certificate of incorporation that integrates a certificate of 
incorporation and any prior amendments to such certificate of 
incorporation, such as the Certificate of Change.\6\ Accordingly, the 
proposed second introductory paragraph would state that the Fifth 
Certificate restates and integrates, and does not further amend, the 
provisions of the Fourth Certificate, as amended by the Certificate of 
Change, and there is no discrepancy between them. Similarly, the fourth 
introductory paragraph would state that the Fourth Certificate was 
thereby restated and integrated to read as set forth in the Fifth 
Certificate. The proposed changes would delete a reference in the 
Fourth Certificate to the amendment of the Third Amended and Restated 
Certificate.
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    \6\ See Del. Code tit 8, Sec.  245(a).
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    Pursuant to Section 245(b) of the DGCL, stockholder approval is not 
required for a restated certificate of incorporation that, like the 
proposed Fifth Certificate, restates and integrates but does not 
further amend the existing certificate of incorporation.\7\ 
Accordingly, the proposed third and fourth introductory paragraphs 
would delete the references to Section 242 of the DGCL, as it refers to 
stockholder approval, which would not be required.\8\
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    \7\ See Del. Code tit 8, Sec.  245(b).
    \8\ See Del. Code tit 8, Sec.  242.
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    References to the ``Third Amended and Restated Certificate of 
Incorporation'' and the ``Fourth Amended and Restated Certificate of 
Incorporation'' in the titles, introductory paragraphs, and signature 
lines would be changed to refer to the ``Fourth Amended and Restated 
Certificate of Incorporation'' and ``Fifth Amended and

[[Page 56508]]

Restated Certificate of Incorporation,'' respectively.
    Finally, the time and date of effectiveness and execution in the 
introductory certifications and signature line would be updated.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Exchange Act \9\ in general, and with Section 
6(b)(1) \10\ 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.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(1).
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    The proposed rule change is a non-substantive administrative change 
that does not impact the governance or ownership of the Exchange. The 
Exchange believes that the proposed rule change would enable the 
Exchange to continue to be so organized as to have the capacity to 
carry out the purposes of the Exchange Act and comply and enforce 
compliance with the provisions of the Exchange Act by its members and 
persons associated with its members, because ensuring that the Fifth 
Certificate identifies the name of ICE's registered agent and address 
of ICE's registered office in the State of Delaware would contribute to 
the orderly operation of the Exchange by adding clarity and 
transparency to its rules. The proposed change would ensure that ICE 
continues to comply with Delaware requirements for corporations to have 
a registered agent and registered office in the State of Delaware. In 
addition, the proposed changes to the introductory paragraphs would 
ensure that the Fifth Certificate correctly describes the proposed 
restatement and integration of the existing certificate of 
incorporation, as amended by the Certificate of Change, and references 
the correct provisions of the DGCL in accordance with the requirements 
of Delaware law, ensuring clarity and transparency.
    For similar reasons, the Exchange also believes that the proposed 
rule change is consistent with Section 6(b)(5) of the Act,\11\ 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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    \11\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed rule change would remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system by ensuring that market participants can more 
easily navigate, understand and comply with its rules. The Exchange 
believes that, by ensuring that such rules accurately identify the name 
of ICE's registered agent and the address of ICE's registered office in 
the State of Delaware, the proposed rule change would reduce potential 
investor or market participant confusion. In addition, the proposed 
changes to the introductory paragraphs and the proposed conforming 
changes would ensure that the Fifth Certificate correctly describes the 
proposed restatement and integration of the existing certificate of 
incorporation, as amended by the Certificate of Change, and references 
the correct provisions of the DGCL in accordance with the requirements 
of Delaware law, reducing potential confusion that may result from 
having an incorrect description or reference in the Fifth Certificate.

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 designed to address any competitive issue but rather is 
concerned solely with making a technical change updating the registered 
office and registered agent of ICE and conforming changes.

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 proposed rule change has become effective pursuant to Section 
19(b)(3)(A) of the Act \12\ and Rule 19b-4(f)(3) \13\ thereunder in 
that the proposed rule change is concerned solely with the 
administration of the Exchange.
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    \12\ 15 U.S.C. 78s(b)(3)(A).
    \13\ 17 CFR 240.19b-4(f)(3).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may 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) \14\ of the Act to determine whether the proposed rule 
change should be approved or disapproved.
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    \14\ 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 rule-comments@sec.gov. Please include 
File Number SR-NYSEAMER-2019-42 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-2019-42. 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 such

[[Page 56509]]

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-2019-42, and should be submitted on or before November 12, 
2019.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-22932 Filed 10-21-19; 8:45 am]
BILLING CODE 8011-01-P


