[Federal Register Volume 79, Number 218 (Wednesday, November 12, 2014)]
[Notices]
[Pages 67215-67220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26691]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-73531; File No. SR-ISEGemini-2014-24]


 Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing 
of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, 
Relating to a Corporate Transaction Involving Its Indirect Parent

November 5, 2014.
    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 22, 2014, the ISE Gemini, LLC (the ``Exchange'' or the 
``ISE Gemini'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change, as described in Items I and 
II below, which items have been prepared by the self-regulatory 
organization. On October 31, 2014, the Exchange filed Amendment No. 1 
to the proposal.\3\ The Commission is publishing this notice to solicit 
comments on the proposed rule change, as modified by Amendment No. 1, 
from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ In Amendment No. 1, the Exchange proposed non-substantive 
changes to amend Exhibits 5E (Form of Eurex Global Derivatives AG 
Corporate Resolutions) and 5F (Form of Agreement and Consent by and 
between Eurex Global Derivatives AG and Eurex Z[uuml]rich AG) so 
that the text the Exchange proposes to delete accurately reflects 
the existing text of the resolutions previously submitted to, and 
approved by, the Commission.
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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 make changes to its indirect, non-U.S. 
upstream ownership structure (the ``Transactions''), in connection with 
which the Series A Preferred Stock of the Exchange's sole, direct 
parent, International Securities Exchange Holdings, Inc. (``ISE 
Holdings''), will be converted to shares of ISE Holdings common stock 
(the ``Conversion''). In order to consummate the Transactions, 
including the Conversion, the Exchange proposes to: (i) Amend and 
restate the Certificate of Designations of Series A Preferred Stock of 
ISE Holdings (the ``COD''); (ii) amend and restate the Amended and 
Restated Certificate of Incorporation of ISE Holdings (the ``COI''); 
and (iii) amend and restate the Second Amended and Restated Trust 
Agreement (the ``Trust Agreement'') that exists among ISE Holdings, 
U.S. Exchange Holdings, Inc. (``U.S. Exchange Holdings''), and the 
Trustees (as defined therein). The Exchange also proposes that certain 
corporate resolutions and agreements that were previously established 
or entered into by entities that will cease to be upstream owners of 
ISE Gemini after the Transactions will no longer be rules of the 
Exchange. In addition, the Exchange proposes to amend and restate the 
Amended and Restated Limited Liability Company Agreement of ISE Gemini 
(``ISE Gemini LLC Agreement'') with respect to distributions. Finally, 
the Exchange proposes to make a non-substantive, administrative change 
to the Second Amended and Restated Certificate of Incorporation of U.S. 
Exchange Holdings (``U.S. Exchange Holdings COI''), the direct U.S. 
upstream owner of ISE Holdings, to update a reference therein to the 
Trust Agreement.
    The text of the proposed rule change is available at the 
Commission's Public Reference Room and on the Exchange's Internet Web 
site at http://www.ise.com.

II. Self-Regulatory Organization's Statement of the Purpose of, and the 
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 these statements may be examined at 
the places specified in Item IV below. The self-regulatory organization 
has prepared summaries, set forth in

[[Page 67216]]

sections A, B and C below, of the most significant aspects of such 
statements.

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

1. Purpose
    The purpose of the proposal is to make changes to the Exchange's 
indirect, non-U.S. upstream ownership structure, in connection with 
which the Series A Preferred Stock of the Exchange's sole, direct 
parent, ISE Holdings, will be converted to shares of ISE Holdings 
common stock.\4\
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    \4\ The Exchange's affiliate, International Securities Exchange, 
LLC (``ISE''), has submitted a nearly identical proposed rule 
change. See SR-ISE-2014-44. The Commission granted the Exchange's 
application for registration as a national securities exchange on 
July 26, 2013. See Securities Exchange Act Release No. 70050 (July 
26, 2013), 78 FR 46622 (File No. 10-209). The Exchange was 
originally named ``Topaz Exchange, LLC.''
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Background
    On December 17, 2007, ISE Holdings, the sole, direct parent of the 
Exchange, became a direct, wholly-owned subsidiary of U.S. Exchange 
Holdings.\5\ U.S. Exchange Holdings is a wholly-owned, direct 
subsidiary of Eurex Frankfurt AG (``Eurex Frankfurt''). Eurex Frankfurt 
is a wholly-owned, direct subsidiary of Eurex Z[uuml]rich AG (``Eurex 
Z[uuml]rich''). Eurex Z[uuml]rich is jointly-owned (50%/50%) by 
Deutsche B[ouml]rse AG (``Deutsche B[ouml]rse'') and Eurex Global 
Derivatives AG (``EGD''). EGD is a wholly-owned, direct subsidiary of 
Deutsche B[ouml]rse.\6\ Contemporaneous with becoming a direct, wholly-
owned subsidiary of U.S. Exchange Holdings, ISE Holdings issued 100,000 
shares of Series A Preferred Stock (``ISE Holdings Preferred'') to 
Eurex Services GmbH (``ESG'').\7\ ESG is a wholly-owned, direct 
subsidiary of Eurex Frankfurt.
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    \5\ See Securities Exchange Act Release No. 56955 (December 13, 
2007), 72 FR 71979 (December 19, 2007) (SR-ISE-2007-101).
    \6\ See Securities Exchange Act Release No. 66834 (April 19, 
2012), 77 FR 24752 (April 25, 2012) (SR-ISE-2012-21). Each of 
Deutsche B[ouml]rse, Eurex Frankfurt, Eurex Z[uuml]rich, and EGD is 
referred to as a ``Non-U.S. Upstream Owner'' and collectively as the 
``Non-U.S. Upstream Owners.''
    \7\ The ISE Holdings Preferred was issued with a par value of 
$.01 per share to finance, and thereby facilitate the completion of, 
the 2007 transaction described in SR-ISE-2007-101, supra note 5.
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ISE Holdings Stock
    Two classes of ISE Holdings stock are currently issued and 
outstanding: (i) 1,000 shares of common stock (``ISE Holdings 
Common''), which are held exclusively by U.S. Exchange Holdings--the 
sole, direct owner of ISE Holdings; and (ii) 100,000 shares of ISE 
Holdings Preferred, which are held exclusively by ESG. Both U.S. 
Exchange Holdings and ESG are wholly-owned, direct subsidiaries of 
Eurex Frankfurt. The ISE Holdings Preferred is provided for in the COD, 
which was adopted on December 19, 2007.\8\ Unlike the ISE Holdings 
Common, ISE Holdings Preferred generally does not have the right by its 
terms to vote in the election of the ISE Holdings Board of Directors or 
on other matters (other than matters affecting the rights, preferences, 
or privileges of ISE Holdings Preferred or as required by law or as set 
forth in the COD).\9\ These rights generally reside exclusively with 
the ISE Holdings Common.
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    \8\ See supra note 5.
    \9\ See COD, Section 5(a). ISE Holdings Preferred would have 
certain of such rights, if, for example, ISE Holdings were to (i) 
file a petition, application, answer or consent seeking 
reorganization or relief under any applicable bankruptcy law, (ii) 
formally approve a plan to dissolve or wind up, or (iii) fail to pay 
all accrued and unpaid ISE Holdings Preferred dividends in any two 
consecutive calendar years. See COD, Section 5(b).
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The Transactions
    The Transactions are designed to: (i) Simplify the indirect 
ownership structure of the Exchange among the various entities 
described above; and (ii) create a more efficient capital structure 
with respect to U.S., German and Swiss laws. The Transactions will not 
have any effect on ISE Holdings' direct ownership of the Exchange or 
the operations of the Exchange. Consummation of the Transactions is 
subject to approval of this proposed rule change by the Commission.\10\ 
In order to effectuate the Transactions, including the Conversion, the 
following steps are anticipated to occur sequentially:
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    \10\ See infra notes 13, 14 and 23.

    1. On or about December 19, 2014, Eurex Z[uuml]rich will sell 
its 100% ownership in Eurex Frankfurt to Deutsche B[ouml]rse, 
whereby Eurex Frankfurt will become a wholly-owned, direct 
subsidiary of Deutsche B[ouml]rse; \11\
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    \11\ As referenced above, Deutsche B[ouml]rse is already the 
100% indirect owner of Eurex Frankfurt. In addition, Deutsche 
B[ouml]rse also is already an approved Non-U.S. Upstream Owner of 
the Exchange. See supra note 6.
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    2. On or about December 21, 2014, Eurex Frankfurt will transfer 
its 100% ownership in ESG, the sole holder of the ISE Holdings 
Preferred, to U.S. Exchange Holdings;
    3. On or about December 21, 2014, and after completion of Step 2 
above, U.S. Exchange Holdings, as the sole, direct owner of ESG, 
will cause ESG to distribute the ISE Holdings Preferred to U.S. 
Exchange Holdings;
    4. On or about December 22, 2014, Eurex Frankfurt, the sole, 
direct owner of U.S. Exchange Holdings, will cause U.S. Exchange 
Holdings to convert the ISE Holdings Preferred into ISE Holdings 
Common. Each of the 100,000 shares of ISE Holdings Preferred will be 
converted to one share of ISE Holdings Common. After the Conversion, 
U.S. Exchange Holdings will continue to hold all of the issued and 
outstanding shares of ISE Holdings Common (1,000 shares before and 
101,000 shares after the Conversion); and
    5. On or about December 31, 2014, Eurex Frankfurt will transfer 
15% of its ownership in U.S. Exchange Holdings to Deutsche 
B[ouml]rse.

    As a result of the Transactions, Eurex Z[uuml]rich and EGD will 
cease to be Non-U.S. Upstream Owners of the Exchange, as Deutsche 
B[ouml]rse will be the sole, direct owner of Eurex Frankfurt, which 
will directly own 85% of U.S. Exchange Holdings.\12\ Deutsche 
B[ouml]rse will directly own the remaining 15% of U.S. Exchange 
Holdings. U.S. Exchange Holdings will remain the sole, direct owner of 
ISE Holdings. ISE Holdings will also remain the sole, direct owner of 
the Exchange. The Transactions will not result in any additional person 
or entity acquiring direct or indirect ownership in the Exchange.
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    \12\ In connection with each of their ownership interests in the 
Exchange, Eurex Z[uuml]rich and EGD, along with Deutsche B[ouml]rse, 
Eurex Frankfurt, U.S. Exchange Holdings, ISE Holdings, and ISE, 
became parties to an agreement to provide for adequate funding for 
the Exchange's regulatory responsibilities. The Exchange 
subsequently became a party to the agreement. Following the 
completion of the Transactions, each of Eurex Z[uuml]rich and EGD 
will cease to be a Non-U.S. Upstream Owner of the Exchange, and as 
such, will no longer be a party to such agreement.
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    In order to consummate the Transactions in the manner described 
above, certain administrative amendments will need to be made to the 
COD, COI and Trust Agreement. The proposed amendments to such documents 
are as follows:
COD
    In order to effect the Conversion, the Exchange proposes to amend 
certain provisions of the COD, as Section 6(b) of the COD currently 
provides that the ISE Holdings Preferred is not convertible. 
Specifically, the Exchange proposes to amend Section 6(b) to provide 
that each share of ISE Holdings Preferred may, at the option of the 
holder thereof, be converted into one fully paid and non-assessable 
share of ISE Holdings Common on the date on which such holder delivers 
a duly executed notice of conversion to ISE Holdings substantially in 
the form of a new Annex A attached to the COD.\13\
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    \13\ The proposed amended COD is attached hereto as Exhibit 5A. 
Section 8 of the COD provides that, with respect to amendments and 
waivers thereof, except as expressly provided for in the COD, no 
provision of the COD may be amended, except in a written instrument 
signed by ISE Holdings and holders of a majority of the ISE Holdings 
Preferred. Notwithstanding the foregoing, before any amendment to or 
repeal of any provision of the COD shall be effective, the same 
shall be submitted to the board of directors of the Exchange, and if 
the same must be filed with, or filed with and approved by, the 
Commission before the same may be effective, under Section 19 of the 
Act and the rules promulgated thereunder, then the same shall not be 
effective until filed with, or filed with and approved by, the 
Commission, as the case may be. In addition to the substantive 
changes, the Exchange proposes to retitle the COD as the ``Amended 
and Restated'' Certificate of Designations of Series A Preferred 
Stock of ISE Holdings.

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[[Page 67217]]

COI
    Article FOURTH of the COI currently provides that the total number 
of shares of all classes of capital stock that ISE Holdings shall have 
authority to issue is one hundred one thousand (101,000) shares, which 
shall be divided as follows: One thousand (1,000) shares of ISE 
Holdings Common, par value $.01 per share, and one hundred thousand 
(100,000) shares of ISE Holdings Preferred, par value $.01 per share.
    In connection with the proposed amendments to the COD, certain 
provisions of the COI will need to be amended to account for the 
increase in the authorized number of ISE Holdings Common that will 
result from the Conversion. Specifically, the Exchange proposes that 
the number of authorized shares of ISE Holdings Common be increased 
from 1,000 shares to 101,000 shares (i.e., the existing, issued and 
outstanding 1,000 shares of ISE Holdings Common plus the additional 
100,000 shares of ISE Holdings Common resulting from the 
Conversion).\14\ In addition, the Exchange proposes to maintain the 
number of authorized ISE Holdings Preferred at 100,000 shares, in the 
event that ISE Holdings determines to issue ISE Holdings Preferred in 
the future. As such, the Exchange therefore proposes to increase the 
total number of authorized ISE Holdings Common and ISE Holdings 
Preferred from 101,000 shares to 201,000 shares. For the avoidance of 
doubt, zero shares of ISE Holdings Preferred would be outstanding post-
Conversion.
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    \14\ The proposed amended COI is attached hereto as Exhibit 5B. 
Article FOURTEENTH of the COI provides that, for so long as ISE 
Holdings shall control, directly or indirectly, the Exchange, or 
facility thereof, before any amendment to or repeal of any provision 
of COI shall be effective, the same shall be submitted to the board 
of directors of the Exchange, and if the same must be filed with, or 
filed with and approved by, the Commission before the same may be 
effective, under Section 19 of the Act and the rules promulgated 
thereunder, then the same shall not be effective until filed with, 
or filed with and approved by, the Commission, as the case may be. 
In addition to the substantive changes, the Exchange proposes to 
retitle the COI as the ``Second'' Amended and Restated Certificate 
of Incorporation of ISE Holdings and update the date thereof.
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    The COI restricts any person, either alone or together with its 
related persons, from having voting control, either directly or 
indirectly, over more than 20% of the outstanding capital stock of ISE 
Holdings (the ``Voting Limit'') and from directly or indirectly owning 
of record or beneficially more than 40% of the outstanding capital 
stock of ISE Holdings (or in the case of any Exchange member, acting 
alone or together with its related persons, from directly or indirectly 
owning of record or beneficially more than 20% of the outstanding 
capital stock of ISE Holdings) (the ``Ownership Limit'').\15\ For the 
avoidance of doubt, the Conversion will not implicate the Voting Limit 
or Ownership Limit, as U.S. Exchange Holdings will continue to own 100% 
of the ISE Holdings Common before and after the Conversion. Similarly, 
no new direct or indirect upstream owners of the Exchange or ISE 
Holdings will result from the Transactions.\16\
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    \15\ See COI, Article FOURTH, Section III.
    \16\ Each of the Non-U.S. Upstream Owners has previously taken 
appropriate steps to incorporate provisions regarding ownership, 
jurisdiction, books and records, and other issues related to their 
control of the Exchange. Specifically, each of the Non-U.S. Upstream 
Owners has adopted resolutions, which were previously approved by 
the Commission, to incorporate these concepts with respect to 
itself, as well as its board members, officers, employees, and 
agents (as applicable), to the extent that they are involved in the 
activities of the Exchange. See File No. 10-209, supra note 4. See 
also discussion below under ``Certain Resolutions and Agreements.''
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Trust Agreement \17\
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    \17\ The Trust Agreement exists among ISE Holdings, U.S. 
Exchange Holdings, and the Trustees (as defined therein).
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    The Trust Agreement serves four general purposes: (i) To accept, 
hold and dispose of Trust Shares \18\ on the terms and subject to the 
conditions set forth therein; (ii) to determine whether a Material 
Compliance Event \19\ has occurred or is continuing; (iii) to determine 
whether the occurrence and continuation of a Material Compliance Event 
requires the exercise of the Call Option; \20\ and (iv) to transfer 
Deposited Shares from the Trust to the Trust Beneficiary \21\ as 
provided in Section 4.2(h) therein.
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    \18\ Under the Trust Agreement, 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 certain 
ownership and voting restrictions pursuant to Article FOURTH of the 
COI, through, for example, 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.
    \19\ Under the Trust Agreement, the term ``Material Compliance 
Event'' means, with respect to a Non-U.S. Upstream Owner, 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 their respective commitments under the 
resolutions (i.e., as referenced in note 16) in any material 
respect.
    \20\ Under the Trust Agreement, 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.
    \21\ Under the Trust Agreement, the term ``Trust Beneficiary'' 
means U.S. Exchange Holdings.
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    The Exchange proposes to amend certain provisions of the Trust 
Agreement in connection with the Transactions. Specifically, the 
Exchange proposes to: (i) Update the recitals of the Trust Agreement 
with respect to the Transactions; (ii) remove references to Eurex 
Z[uuml]rich and EGD from the definition of ``Affected Affiliate'' in 
Section 1.1 of the Trust Agreement; (iii) remove references to EDGA 
Exchange, Inc. (``EDGA Exchange'') and EDGX Exchange, Inc. (``EDGX 
Exchange'') from the definition of ``Controlled National Securities 
Exchange'' in Section 1.1 and update the recitals of the Trust 
Agreement accordingly; \22\ and (iv) remove EGD's address from the 
notice provisions in Section 8.8 of the Trust Agreement.\23\ The 
proposed amendments to the Trust Agreement are strictly administrative 
changes to reflect the updated corporate structure resulting from the 
Transactions (and from legacy transactions as related to EDGA Exchange 
and EDGX Exchange) and will not affect the mechanisms established by 
the Trust Agreement for the benefit of the Trust Beneficiary.
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    \22\ EDGA Exchange and EDGX Exchange previously were 
``Controlled National Securities Exchanges.'' However, on January 
30, 2014 the Commission approved a proposed rule change of EDGA 
Exchange and EDGX Exchange in connection with the proposed business 
combination involving their indirect parent company, Direct Edge 
Holdings LLC, and BATS Global Markets, Inc., the parent company of 
BATS Exchange, Inc. (``BATS'') and BATS-Y Exchange, Inc. (``BYX''). 
See Securities Exchange Act Release No. 71449 (January 30, 2014), 79 
FR 6961 (February 5, 2014) (SR-EDGA-2014-34; SR-EDGX-2014-43). As a 
result, EDGA Exchange and EDGX Exchange ceased to be ``Controlled 
National Securities Exchanges.''
    \23\ The Trust Agreement is attached hereto as Exhibit 5C. 
Section 8.2 of the Trust Agreement provides, in part, that, for so 
long as ISE Holdings controls, directly or indirectly, the Exchange, 
before any amendment or repeal of any provision of the Trust 
Agreement shall be effective, such amendment or repeal shall be 
submitted to the board of directors of the Exchange, as applicable, 
and if such amendment or repeal must be filed with or filed with and 
approved by the Commission under Section 19 of the Act and the rules 
promulgated thereunder before such amendment or repeal may be 
effectuated, then such amendment or repeal shall not be effectuated 
until filed with or filed with and approved by the Commission, as 
the case may be. In addition to the substantive changes, the 
Exchange proposes to retitle the Trust Agreement as the ``Third'' 
Amended and Restated Trust Agreement and update the date thereof.

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[[Page 67218]]

Certain Resolutions and Agreements
    As described above, each of the Non-U.S. Upstream Owners, including 
EGD and Eurex Z[uuml]rich, has previously taken appropriate steps to 
incorporate provisions regarding ownership, jurisdiction, books and 
records, and other issues related to their control of the Exchange. 
Specifically, each of such Non-U.S. Upstream Owners has adopted 
resolutions, which were previously approved by the Commission, to 
incorporate these concepts with respect to itself, as well as its board 
members, officers, employees, and agents (as applicable), to the extent 
that they are involved in the activities of the Exchange.\24\ For 
example, the resolution of each of such Non-U.S. Upstream Owners 
provides that it shall comply with the U.S. federal securities laws and 
the rules and regulations thereunder and shall cooperate with the 
Commission and with the Exchange. In addition, the resolution of each 
of such Non-U.S. Upstream Owners provides that the board members, 
including each person who becomes a board member, would so consent to 
comply and cooperate and the particular Non-U.S. Upstream Owner would 
take reasonable steps to cause its officers, employees, and agents to 
also comply and cooperate, to the extent that he or she is involved in 
the activities of the Exchange.
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    \24\ See supra note 16. See also File No. 10-209, supra note 4.
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    In addition to these resolutions, and due to concerns about the 
ability of EGD to provide the Commission with direct access to 
information under Swiss law, EGD and Eurex Z[uuml]rich previously 
entered into an ``Agreement and Consent,'' in which EGD agreed to 
provide information related to the activities of the Exchange, 
including books and records of EGD related to the activities of the 
Exchange, to the Commission, through Eurex Z[uuml]rich. Eurex Zurich in 
turn, would provide such information to the Swiss Financial Market 
Supervisory Authority FINMA (``FINMA''), which agreed to serve as a 
conduit for unfiltered delivery of books and records of EGD related to 
the activities of the Exchange to the Commission (the ``FINMA 
Procedure''). The FINMA Procedure was designed to ensure that EGD would 
(1) cooperate with the Commission and the Exchange; (2) comply with 
U.S. federal securities laws; (3) comply with the inspection and 
copying of EGD's books and records; (4) agree that EGD's books, 
records, officers, directors and employees be deemed to be those of the 
Exchange; (5) maintain confidentiality of information pertaining to the 
self-regulatory function of the Exchange; (6) preserve the independence 
of the self-regulatory function of the Exchange; (7) take reasonable 
steps to cause EGD's officers, directors and employees to consent to 
the applicability to him or her of the resolutions described 
immediately above; and (8) take reasonable steps to cause EGD's agents 
to cooperate with the Commission and the Exchange.\25\
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    \25\ See File No. 10-209, supra note 4.
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    As EGD and Eurex Z[uuml]rich will cease to be Non-U.S. Upstream 
Owners of the Exchange after the Transactions, the Exchange proposes 
administrative changes, such that the resolutions of these entities, as 
referenced above, along with the Agreement and Consent, will no longer 
be rules of the Exchange as of a date in December 2014 that corresponds 
to the effective closing date of the applicable step in the 
Transactions.\26\
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    \26\ The ``Form of Swiss Parent Corporate Resolutions'' is 
attached hereto as Exhibit 5D in relation to Eurex Z[uuml]rich. The 
``Form of EGD Corporate Resolution'' is attached hereto as Exhibit 
5E. The ``Form of Agreement and Consent between EGD and Eurex 
Z[uuml]rich'' is attached hereto as Exhibit 5F. As referenced above, 
resolutions in relation to board members, officers, employees, and 
agents (as applicable) of EGD and Eurex Z[uuml]rich also would cease 
accordingly. In this regard, the ``Form of Agreement and Consent 
(Swiss Entities)'' is attached hereto as Exhibit 5G.
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ISE Gemini LLC Agreement
    In addition to the changes described above, the Exchange proposes 
to amend the ISE Gemini LLC Agreement with respect to distributions. 
Section 3.1 of the ISE Gemini LLC Agreement currently provides, in 
part, that the Exchange is authorized to issue a single class of 
Limited Liability Company Interest, as defined in the Delaware Limited 
Liability Company Act,\27\ to ISE Holdings, its sole direct parent, 
which shall convey all rights to the profits and losses of the Exchange 
and the right to receive distributions of the assets of the Exchange. 
The first sentence of Section 3.3 to the ISE Gemini LLC Agreement 
currently provides that distributions may not be made to ISE Holdings 
except: (i) Pursuant to Section 3.4 of the ISE LLC Agreement (e.g., 
distributions for U.S. Federal and state income tax purposes and/or to 
fund payments of taxes by ISE Holdings attributable to the assets, 
income and losses of the Exchange); or (ii) upon liquidation of the 
Exchange.\28\ The Exchange proposes to delete this sentence, which 
could be read as a limitation on the Exchange's ability to make 
distributions to ISE Holdings in accordance with Section 3.1. The 
proposed change would not impact the current practice of distributions 
from the Exchange to ISE Holdings, and would continue to provide that: 
(i) ISE Gemini would not be required to make a distribution to ISE 
Holdings if such distribution would violate the Delaware Limited 
Liability Company Act, any other applicable law, or is otherwise 
required to fulfill the regulatory functions or responsibilities of the 
Exchange, and (ii) Regulatory Funds will not be used for non-regulatory 
purposes, but rather shall be used to fund the legal, regulatory and 
surveillance operations of the Exchange and the Exchange will not make 
any distribution to ISE Holdings using Regulatory Funds.\29\ Section 
3.3 to the ISE Gemini LLC Agreement would continue to ensure that any 
distributions by the Exchange to ISE Holdings, and subsequently to its 
indirect upstream owners, including U.S. Exchange Holdings and the Non-
U.S. Upstream Owners, would not be made: (i) In violation of the 
Exchange's legal and regulatory responsibilities; or (ii) with 
Regulatory Funds.\30\
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    \27\ 6 Del.C. Sec.  18-101, et seq.
    \28\ This sentence, along with the remainder of Section 3.3, was 
recently added to the ISE Gemini LLC Agreement. See Securities 
Exchange Act Release No. 73196 (September 23, 2014), 79 FR 58387 
(September 29, 2014) (SR-ISEGemini-2014-23).
    \29\ For purposes of Section 3.3, the term ``Regulatory Funds'' 
means fees, fines or penalties derived from the regulatory 
operations of the Exchange, provided that Regulatory Funds does not 
include revenues derived from listing fees, market data revenues, 
transaction revenues or any other aspect of the commercial 
operations of the Exchange or a facility of the Exchange, even if a 
portion of such revenues are used to pay costs associated with the 
regulatory operations of the Exchange. The Exchange is proposing to 
make a non-substantive change to clarify the text regarding use of 
Regulatory Funds. As a result of the change, the ISE Gemini LLC 
Agreement and the ISE limited liability company agreement would 
address distributions in the same manner. ISE is proposing a related 
change to its respective limited liability company agreement in SR-
ISE-2014-44. As a result, the language would be identical for both 
the Exchange and ISE.
    \30\ The proposed amended ISE Gemini LLC Agreement is attached 
hereto as Exhibit 5H. In addition to these substantive changes, the 
Exchange proposes to retitle the ISE Gemini LLC Agreement as the 
``Second'' Amended and Restated Limited Liability Company Agreement, 
update the date thereof, and update the table of contents.
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U.S. Exchange Holdings COI
    Lastly, the Exchange proposes to make a non-substantive, 
administrative change to the U.S. Exchange Holdings COI to update a 
reference therein to the Trust Agreement. Article THIRTEENTH of the 
U.S. Exchange Holdings COI contains outdated references to (i) the 
``Amended and Restated'' Trust Agreement, which is currently the

[[Page 67219]]

``Second Amended and Restated'' Trust Agreement and, as discussed 
herein, will become the ``Third Amended and Restated'' Trust Agreement; 
and (ii) the effective date of the Trust Agreement, which previously 
changed from February 4, 2010 to April 30, 2012 \31\ and, as discussed 
herein, will further change to a date in December 2014 that corresponds 
to the effective closing date of the applicable step in the 
Transactions. The Exchange proposes to update these references. The 
Exchange also proposes to add language specifying that the Trust 
Agreement may be amended, restated or replaced from time to time, 
retitle the document as the ``Third'' Amended and Restated Certificate 
of Incorporation of U.S. Exchange Holdings, and update the effective 
date thereof.\32\ Finally, the Exchange proposes to remove references 
to EDGA Exchange and EDGX Exchange from the definition of ``Controlled 
National Securities Exchange'' in Article TENTH.\33\
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    \31\ See supra note 6.
    \32\ The proposed amended U.S. Exchange Holdings COI is attached 
hereto as Exhibit 5I. Article SIXTEENTH of the U.S. Exchange 
Holdings COI provides that, for so long as U.S. Exchange Holdings 
shall control, directly or indirectly, the Exchange, or facility 
thereof, before any amendment to or repeal of any provision of the 
U.S. Exchange Holdings COI shall be effective, the same shall be 
submitted to the board of directors of the Exchange, and if the same 
must be filed with, or filed with and approved by, the Commission 
before the same may be effective, under Section 19 of the Act and 
the rules promulgated thereunder, then the same shall not be 
effective until filed with, or filed with and approved by, the 
Commission, as the case may be.
    \33\ See supra note 22.
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Summary
    Upon the consummation of the Transactions, including the proposed 
changes to the COD, COI, Trust Agreement, ISE Gemini LLC Agreement and 
U.S. Exchange Holdings COI (and related resolutions and agreements 
ceasing to be rules of the Exchange), the Exchange will continue to 
operate and regulate its market and members in the same exact manner as 
it did prior to the Transactions. The Transactions will not impair the 
ability of ISE Holdings, the Exchange, or any facility thereof, to 
carry out their respective functions and responsibilities under the 
Act. Moreover, the Transactions will not impair the ability of the 
Commission to enforce the Act with respect to the Exchange and its Non-
U.S. Upstream Owners, including each of their directors, officers, 
employees and agents, to the extent they are involved in the activities 
of the Exchange. As such, the Commission's plenary regulatory authority 
over the Exchange will not be affected by the approval of this proposed 
rule change.
2. Statutory Basis
    The Exchange believes that this proposal is consistent with Section 
6(b)of the Act,\34\ in general, and furthers the objectives of Section 
6(b)(1) of the Act,\35\ in particular, in that it enables the Exchange 
to be so organized as to have the capacity to be able to carry out the 
purposes of the Act and to comply, and to enforce compliance by its 
exchange members and persons associated with its exchange members, with 
the provisions of the Act, the rules and regulations thereunder, and 
the rules of the Exchange. The Exchange will operate in the same manner 
following the Transactions as it operates today. Thus, the Commission 
will continue to have plenary regulatory authority over the Exchange, 
as is the case currently with the Exchange. The proposed rule change is 
consistent with and will facilitate an ownership structure that will 
continue to provide the Commission with appropriate oversight tools to 
ensure that the Commission will have the ability to enforce the Act 
with respect to the Exchange and its direct and indirect Non-U.S. 
Upstream Owners, including each of their directors, officers, employees 
and agents, to the extent they are involved in the activities of the 
Exchange.
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    \34\ 15 U.S.C. 78s(b).
    \35\ 15 U.S.C. 78s(b)(1).
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    The Exchange also believes that this filing furthers the objectives 
of Section 6(b)(5) \36\ of the Act because the proposed rule change 
would be consistent with and facilitate a governance and regulatory 
structure that 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 regulating, 
clearing, settling, processing information with respect to, and 
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. 
Specifically, the Exchange believes that the proposed rule change will 
continue to provide the Commission and the Exchange with access to 
necessary information that will allow the Exchange to efficiently and 
effectively enforce compliance with the Act, as well as allow the 
Commission to provide proper oversight, which will ultimately promote 
just and equitable principles of trade and protect investors. In 
addition, the Exchange believes that the proposed rule change will 
continue to preserve the independence of the Exchange's self-regulatory 
function and ensure that the Exchange will be able to obtain any 
information it needs in order to detect and deter any fraudulent and 
manipulative acts in its marketplace and carry out its regulatory 
responsibilities under the Act.
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    \36\ 15 U.S.C. 78f(b)(5).
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    Approval of this proposed rule change will enable ISE Holdings to 
continue its operations and the Exchange to continue its orderly 
discharge of regulatory duties to prevent fraudulent and manipulative 
acts and practices, to promote just and equitable principles of trade, 
to foster cooperation and coordination with persons engaged in 
regulating, clearing, settling, processing information with respect to, 
and facilitating transactions in securities, to remove impediments to 
and perfect the mechanism of a free and open market and a national 
market system, and, in general, to protect investors and the public 
interest.
    Finally, the Exchange is not proposing any significant or novel 
regulatory issues, nor is it proposing any changes to the Exchange's 
operational or trading structure in connection with the Transactions. 
Instead, the Exchange represents that the proposed rule change consists 
of administrative amendments to ISE Holdings' COI, COD and the Trust 
Agreement (along with changes to the ISE Gemini LLC Agreement related 
to distributions; a non-substantive, administrative change to the U.S. 
Exchange Holdings COI; and administrative changes with respect to 
certain resolutions and agreements in relation to entities that are or 
were Non-U.S. Upstream Owners of the Exchange, but whose status as such 
has already ceased, or that will cease as a result of the Transactions, 
such that the resolutions and agreements will cease to be rules of the 
Exchange), and that no changes will be made to other aspects of the 
Exchange's organizational documents that were previously approved by 
the Commission.

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

    In accordance with Section 6(b)(8) of the Act,\37\ the Exchange 
believes that the proposed rule change would not impose any burden on 
competition that is not necessary or appropriate in furtherance of the 
purposes of the Act. The Exchange does not believe that the proposed 
rule change implicates any competitive issues. Rather, the Transactions 
merely represent a

[[Page 67220]]

restructuring of indirect ownership interests of the Exchange, and will 
not involve the introduction of any new direct or indirect owners or 
any entity or individual that would have the right to direct the 
actions of the Exchange or vote the shares of the Exchange. As such, 
the Exchange believes that the proposal is consistent with the Act.
---------------------------------------------------------------------------

    \37\ 15 U.S.C. 78f(b)(8).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    The Exchange has not solicited, and does not intend to solicit, 
comments on this proposed rule change. The Exchange has not received 
any unsolicited written comments from members or other interested 
parties.

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

    Within 45 days of the publication date of this notice or within 
such longer period (1) as the Commission may designate up to 45 days of 
such date if it finds such longer period to be appropriate and 
publishes its reasons for so finding or (2) as to which the self-
regulatory organization consents, the Commission will:
    (A) by order approve or disapprove such Proposed Rule Change; or
    (B) institute proceedings to determine whether the Proposed Rule 
Change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change, as modified by Amendment No. 1, is consistent with the Act. 
Comments may be submitted by any of the following methods:

Electronic Comments

    <bullet> Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml ); or
    <bullet> Send an email to <a href="/cdn-cgi/l/email-protection#0674736a632b65696b6b636872754675636528616970"><span class="__cf_email__" data-cfemail="5321263f367e303c3e3e363d2720132036307d343c25">[email protected]</span></a>. Please include 
File Number SR-ISEGemini-2014-24 on the subject line.

Paper Comments

    <bullet> Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-ISEGemini-2014-24. This 
file number should be included on the subject line if email is used.
    To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml ). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for Web site 
viewing and printing in the Commission's Public Reference Room on 
official business days between the hours of 10:00 a.m. and 3:00 p.m. 
Copies of such filing also will be available for inspection and copying 
at the principal offices of the Exchange. All comments received will be 
posted without change; the Commission does not edit personal 
identifying information from submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-ISEGemini-2014-24, and should be 
submitted on or before December 3, 2014.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\38\
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    \38\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-26691 Filed 11-10-14; 8:45 am]
BILLING CODE 8011-01-P


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