90 FR 124 pgs. 28841-28844 - Self-Regulatory Organizations; NYSE Texas, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Sixth Amended and Restated Certificate of Incorporation of Intercontinental Exchange, Inc. and Ninth Amended and Restated Certificate of Incorporation of Intercontinental Exchange Holdings, Inc.
Type: NOTICEVolume: 90Number: 124Pages: 28841 - 28844
Pages: 28841, 28842, 28843, 28844Docket number: [Release No. 34-103336; File No. SR-NYSETEX-2025-17]
FR document: [FR Doc. 2025-12220 Filed 6-30-25; 8:45 am]
Agency: Securities and Exchange Commission
Official PDF Version: PDF Version
[top]
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-103336; File No. SR-NYSETEX-2025-17]
Self-Regulatory Organizations; NYSE Texas, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Sixth Amended and Restated Certificate of Incorporation of Intercontinental Exchange, Inc. and Ninth Amended and Restated Certificate of Incorporation of Intercontinental Exchange Holdings, Inc.
June 26, 2025.
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 June 16, 2025, the NYSE Texas, Inc. ("NYSE Texas" or the "Exchange") filed with the Securities and Exchange Commission (the "Commission") the proposed rule change as described in Items I and II below, which Items have been prepared by the self-regulatory organization. 4 The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.
Footnotes:
1 ?15 U.S.C. 78s(b)(1).
2 ?15 U.S.C. 78a.
3 ?17 CFR 240.19b-4.
4 ?For compliance with Federal Register publication requirements, the Commission slightly edited note 9, infra.
I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change
The Exchange proposes to amend the Sixth Amended and Restated Certificate of Incorporation of Intercontinental Exchange, Inc. ("ICE") and Ninth Amended and Restated Certificate of Incorporation of Intercontinental Exchange Holdings, Inc. ("ICE Holdings") to reflect regulations relating to security-based swap execution facilities ("SBSEFs"), update the registered office in the State of Delaware, and make non-substantive 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
The Exchange proposes to amend the ICE Current Certificate of Incorporation and ICE Holdings Current Certificate of Incorporation (together, the "Current Certificates") to reflect regulations relating to SBSEFs, update the registered office in the State of Delaware, and make non-substantive and conforming changes. 5 No change is proposed to the certificate of formation or bylaws of the Exchange.
Footnotes:
5 ?ICE is the sole shareholder of ICE Holdings. ICE Holdings is the parent company of ICE Swap Trade, LLC. ICE Holdings is also the sole shareholder of NYSE Holdings LLC, which is the sole shareholder of NYSE Group, Inc. NYSE Group, Inc. is the sole shareholder of NYSE Texas Holdings, Inc., the parent company of the Exchange.
The changes to the ICE Current Certificate of Incorporation described herein would become operative upon the proposed Seventh Amended and Restated Certificate of Incorporation ("ICE Proposed Certificate of Incorporation") becoming effective pursuant to its filing with the Secretary of State of the State of Delaware. The changes to the ICE Holdings Current Certificate of Incorporation described herein would become operative upon the proposed Tenth Amended and Restated Certificate of Incorporation ("ICE Holdings Proposed Certificate of Incorporation" and, together with the ICE Proposed Certificate of Incorporation, the "Proposed Certificates") becoming effective pursuant to its filing with the Secretary of State of the State of Delaware.
Changes Related to SBSEFs
Securities and Exchange Commission ("Commission") regulations extend limitations on stockholder voting and ownership to SBSEFs. 6 Because ICE's subsidiary ICE Swap Trade, LLC ("IST") has registered with the Commission as an SBSEF, these Commission regulations apply.
Footnotes:
6 ? See 17 CFR 242.834. See also Securities Exchange Act Release No. 98845 (November 2, 2023), 88 FR 87156 (December 15, 2023) (Security-Based Swap Execution and Registration and Regulation of Security-Based Swap Execution Facilities) (adopting new Regulation SE, consisting of 17 CFR 242.800 through 17 CFR 242.835), effective February 13, 2024).
IST has adopted Rule 410 (Ownership Limitation), 7 which IST has advised the Exchange was designed to incorporate the requirements of 17 CFR 242.834 ("Rule 834") into the rules of the SBSEF. Additionally, ICE and ICE Holdings intend to amend their Current Certificates as described below.
Footnotes:
7 ? See ICE Swap Trade, LLC Submission No. 25-02 (SBSF-ICES-2025-002).
ICE Proposed Certificate of Incorporation
The ICE Current Certificate of Incorporation would be amended as follows.
First, Article V (Limitations on Voting and Ownership) has limitations on stockholder voting and ownership that apply so long as ICE directly or indirectly controls a national securities exchange registered under the Act, such as the Exchange. These would be amended to also apply so long as ICE directly or indirectly controls a SBSEF registered under the Exchange Act, as follows:
• The first sentence of Article V(A)(1) (Voting Limitation), would be amended to add "or a security-based swap execution facility registered under Section 3D of the Exchange Act" immediately prior to (a).
• The end of Article V(A)(2) would be modified by adding "(and, with respect to a security-based swap execution facility registered under Section 3D of the Exchange Act, such resolution shall have been submitted to the SEC under Rule 242.806 or 242.807 under Regulation SE under the Exchange Act, shall have been approved by the SEC (if applicable) and shall have become effective thereunder)" to the existing (c).
• Article V(A)(3)(a) would be modified by adding text to the start of (i) as follows (proposed additions italicized):
(i) will not impair the ability of any national securities exchange registered under Section 6 of the Exchange Act or any security-based swap execution facility registered under Section 3D of the Exchange Act, in any case that is directly or indirectly controlled by the Corporation (each such national securities exchange or security-based swap execution facility so controlled, an "Exchange"),
• The definition of "Member" in Article V(A)(8) would be modified as follows (proposed additions italicized):
[top] "Member" shall mean , with respect to any national securities exchange, a Person that is a "member" of an Exchange within the meaning of Section
• The definition of "Related Persons" in Article V(A)(10) would be modified as follows (proposed additions italicized):
(d) in the case of a Person that is a Member, any Person that is associated with such Person (as determined using the definition of "person associated with a member" as defined under Section 3(a)(21) of the Exchange Act (with references therein to a national securities exchange being deemed to include a security-based swap execution facility) );
(e) in the case of a Person that is a natural person and is a Member, any broker or dealer that is also a Member with which such Person is associated (as determined using the definition of "person associated with a member" as defined under Section 3(a)(21) of the Exchange Act (with references therein to a national securities exchange being deemed to include a security-based swap execution facility) );
• The end of the concentration limits in Article V(B)(2) (Ownership Concentration Limitation) would be modified by adding the following parenthetical to the existing (c): "(and, with respect to an Exchange that is a security-based swap execution facility, such resolution shall have been submitted to the SEC pursuant to Rule 242.806 or 242.807 of Regulation SE under the Exchange Act, shall have been approved by the SEC (if applicable) and shall have become effective thereunder)".
Second, Article X (Amendments) of the ICE Current Certificate of Incorporation requires any amendment to, or repeal of any provision in, the ICE Current Certification of Incorporation to be filed with, or filed with and approved by, the Commission. These would be amended to also apply so long as ICE directly or indirectly controls a SBSEF registered under the Exchange Act.
To do so, the second sentence of Article X would be amended to add "(or, in the case of a security-based swap execution facility, Rule 242.806 or 242.807 under Regulation SE under the Exchange Act)" immediately following "the rules promulgated thereunder". In this way, the ICE Proposed Certificate of Incorporation would provide that, if the board of directors of any controlled SBSEF determines that any amendment or repeal must be filed with or filed with and approved by the Commission under Rule 242.806 or 242.807 of Regulation SE before such amendment or repeal may be effectuated, then such amendment or repeal shall not be effectuated until so filed with or filed with and approved by the Commission.
ICE Holdings Proposed Certificate of Incorporation
The ICE Holdings Current Certificate of Incorporation would be amended as follows.
• A new paragraph would be added to Article V(A) (Voting Limitations) as follows (all text new):
4. In addition to the limitations in subsections 1-3 above of this Section A of Article V, for so long as the Corporation shall directly or indirectly control a security-based swap execution facility registered under Section 3D of the Exchange Act (each security-based swap execution facility so controlled, an " SBSEF" ), no SBSEF Member (as defined below), either alone or together with its Related Persons, shall be entitled directly or indirectly to vote, cause the voting of, or give any consent or proxy with respect to the voting of, any interest that exceeds 20% of the voting power of any class of securities or of other ownership interest in the Corporation (such threshold being hereinafter referred to as the " SBSEF Voting Limitation" ), and the Corporation shall disregard any such votes purported to be cast in excess of the SBSEF Voting Limitation.
• The text after "enforced against such Record Owner" in current Article V(A)(5) (Article V(A)(6) of the ICE Holdings Proposed Certificate of Incorporation) would be amended as follows (proposed deletion in brackets, proposed additions italicized):
in a manner that will accomplish the Voting Limitation , [and] the Recalculated Voting Limitation and the SBSEF Voting Limitation applicable to such Person and its Related Persons.
• Paragraphs (d) and (e) of the definition of "Related Persons" in current Article V(A)(10) (Article V(A)(11) of the ICE Holdings Proposed Certificate of Incorporation) would be amended as follows (proposed additions italicized):
(d) in the case of a Person that is a Member or SBSEF Member, any Person that is associated with such Person (as determined using the definition of "person associated with a member" as defined under Section 3(a)(21) of the Exchange Act (with references therein to a national securities exchange being deemed to include a security-based swap execution facility) );
(e) in the case of a Person that is a natural person and is a Member or SBSEF Member, any broker or dealer that is also a Member or SBSEF Member with which such Person is associated (as determined using the definition of "person associated with a member" as defined under Section 3(a)(21) of the Exchange Act (with references therein to a national securities exchange being deemed to include a security-based swap execution facility) );
• The definition of "SBSEF Member" would be added as new Article V(A)(12), as follows (all text new):
12. " SBSEF Member" means, with respect to a security-based swap execution facility, a Person that is a "member" within the meaning of Rule 242.802 of Regulation SE under the Exchange Act.
• A new paragraph would be added to Article V(B) (Ownership Concentration Limitation) as follows (all text new):
5. In addition to the limitations in subsections 1-4 above of this Section B of Article V, for so long as the Corporation shall directly or indirectly control any SBSEF, no SBSEF Member, either alone or together with its Related Persons, shall be permitted at any time to own, directly or indirectly, 20% or more of any class of voting securities or of other voting interest in the Corporation (the " SBSEF Concentration Limitation" ). If any SBSEF Member, either alone or together with its Related Persons, at any time beneficially owns voting securities or other voting interest in the Corporation in excess of the SBSEF Concentration Limitation, such SBSEF Member and its Related Persons shall be obligated to sell promptly, and the Corporation shall be obligated to purchase promptly, at a price equal to the par value of such voting securities or other voting interest and to the extent funds are legally available therefor, that number of voting securities or other voting interest of the Corporation necessary so that such SBSEF Member, together with its Related Persons, shall beneficially own, directly or indirectly, less than 20% of any class of voting securities or of other voting interest in the Corporation, after taking into account that such repurchased voting securities or other voting interest shall become treasury shares and shall no longer be deemed to be outstanding.
• The second clause of current Article V(B)(5) (Article V(B)(6) of the ICE Holdings Proposed Certificate of Incorporation) would be amended as follows (proposed additions italicized):
[top] provided, however, that, if any Transfer of any shares of stock of the Corporation shall cause any Person, either alone or together with its Related Persons, at any time to beneficially own
• The first sentence of current Article V(B)(6) (Article V(A)(7) of the ICE Holdings Proposed Certificate of Incorporation) would be amended as follows (proposed addition italicized):
If any share of Common Stock shall be represented by a certificate, a legend shall be placed on such certificate to the effect that such share of Common Stock is subject to the Concentration Limitations and SBSEF Concentration Limitation as set in Section B of this Article V.
• The final clause of Article V(C)(2) (Procedure for Repurchasing Stock) would be amended to add "or SBSEF Concentration Limitation" after "Concentration Limitation".
• Subclauses (i) and (ii) of the first sentence of Article V(D) (Right to Information; Determinations by the Board of Directors) would be amended as follows (proposed deletion in brackets, proposed additions italicized):
(i) to be subject to the Voting Limitation, [or] the Recalculated Voting Limitation or the SBSEF Voting Limitation, (ii) to own beneficially (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) shares of stock of the Corporation entitled to vote on any matter in excess of the Concentration Limitation or SBSEF Concentration Limitation,
• The parenthetical in the first sentence of Article IX(B) (Quorum) would be amended as follows (proposed deletions in brackets, proposed additions italicized):
(it being understood that any shares in excess of the Voting Limitation , [or] the Recalculated Voting Limitation or the SBSEF Voting Limitation shall not be counted as present at the meeting and shall not be counted as outstanding shares of stock of the Corporation for purposes of determining whether there is a quorum, unless and only to the extent that the Voting Limitation or the Recalculated Voting Limitation, as applicable, shall have been duly waived pursuant to Section A or Section B of ARTICLE V).
Change in Registered Office
ICE and ICE Holdings are corporations organized under the laws of the State of Delaware. As such, they are both required to have and maintain a registered office and registered agent in the State of Delaware. 8
Footnotes:
8 ? See Del. Code tit 8, §§?131 and 132.
The Exchange proposes to change the address of the registered office in both Proposed Certificates to reflect the move of the office of the registered agent. No change is proposed to the registered agent. Accordingly, Article II of both Proposed Certificates would be amended to provide that the address of the registered office in the State of Delaware, County of New Castle, is 1521 Concord Pike, Suite 201, Wilmington, Delaware 19803.
Other Changes
The Exchange proposes to make changes that are conforming or technical in nature. All are non-substantive.
ICE Proposed Certificate of Incorporation
References to the "Sixth Amended and Restated Certificate of Incorporation" and the "Fifth Amended and Restated Certificate of Incorporation" in the titles, introductory paragraphs, and signature lines would be changed to refer to the "Seventh Amended and Restated Certificate of Incorporation" and "Sixth Amended and Restated Certificate of Incorporation," respectively.
The date of effectiveness and execution in the introductory certifications and signature line would be updated.
ICE Holdings Proposed Certificate of Incorporation
References to the "Ninth Amended and Restated Certificate of Incorporation" and the "Eighth Amended and Restated Certificate of Incorporation" in the titles, introductory paragraphs, and signature lines would be changed to refer to the "Tenth Amended and Restated Certificate of Incorporation" and "Ninth Amended and Restated Certificate of Incorporation," respectively.
The date of effectiveness and execution in the introductory certifications and signature line would be updated.
To conform to one style, those terms that are not already underlined when defined would be underlined [sic]. 9 In addition to the definitions that would be added, the already existing definitions are in the introductory paragraph, the numbered certifications that immediately follow it, Article IV(A) (Classes and Series of Stock), Article IV(C) (Transfer Restrictions on Stock), and Article V(A)(1).
Footnotes:
9 ?For example, "(the `Corporation')" would become underlined [sic]. For compliance with Federal Register publication requirements, the Commission added the term "underlined" here in place of a depiction of the term "Corporation" becoming underlined [sic].
The word "commission" in Article IV(C) would be capitalized.
Paragraphs after proposed Article V(A)(4) and proposed Article V(B)(5) would be renumbered.
The cross reference in Article V(A)(6) would be renumbered from "Section A of ARTICLE VI" to "Section A of ARTICLE V".
In Article X (Amendments), the parenthetical "(or the boards of directors of their successors)" would be deleted as unnecessary, because "Exchange" includes all ICE Holdings-controlled national securities exchanges. 10
Footnotes:
10 ? See the definition of "Exchange" in ICE Holdings Current Certificate of Incorporation, Article V(A)(1). No change to the definition is proposed.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act, 11 in general, and furthers the objectives of Section 6(b)(1)? 12 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.
Footnotes:
11 ?15 U.S.C. 78f(b).
12 ?15 U.S.C. 78f(b)(1).
Together, the Proposed Certificates and IST Rule 410? 13 are consistent with the Act and the rules promulgated under the Act.
Footnotes:
13 ? See ICE Swap Trade, LLC Submission No. 25-02 (SBSF-ICES-2025-002).
The Exchange believes that the proposed rule change would contribute to the orderly operation of the Exchange and 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 none of the proposed changes to the Proposed Certificates substantively would impact the Exchange. Rather the proposed changes are solely concerned with SBSEFs, updating the address of the registered office in Delaware of ICE and ICE Holdings and making conforming changes.
[top] Additionally, IST has advised the Exchange that IST Rule 410 would,
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address any competitive issue but rather is concerned solely with ensuring that IST is in compliance with Regulation SE, updating the address of the registered office in Delaware of ICE and ICE Holdings, and making non-substantive and conforming changes to the Current Certificates. No change is proposed to the certificate of formation or bylaws 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
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)(iii) of the Act? 14 and Rule 19b-4(f)(6) thereunder. 15
Footnotes:
14 ?15 U.S.C. 78s(b)(3)(A)(iii).
15 ?17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) requires a self-regulatory organization to give the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. The Exchange has satisfied this requirement.
A proposed rule change filed under Rule 19b-4(f)(6)? 16 normally does not become operative prior to 30 days after the date of the filing. However, pursuant to Rule 19b-4(f)(6)(iii), 17 the Commission may designate a shorter time if such action is consistent with the protection of investors and the public interest.
Footnotes:
16 ?17 CFR 240.19b-4(f)(6).
17 ?17 CFR 240.19b-4(f)(6)(iii).
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)? 18 of the Act to determine whether the proposed rule change should be approved or disapproved.
Footnotes:
18 ?15 U.S.C. 78s(b)(2)(B).
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 ( https://www.sec.gov/rules/sro.shtml ); or
• Send an email to rule-comments@sec.gov. Please include file number SR-NYSETEX-2025-17 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-NYSETEX-2025-17. 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 ( https://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 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to file number SR-NYSETEX-2025-17 and should be submitted on or before July 22, 2025.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 19
Footnotes:
19 ?17 CFR 200.30-3(a)(12).
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2025-12220 Filed 6-30-25; 8:45 am]
BILLING CODE 8011-01-P