[Federal Register Volume 77, Number 45 (Wednesday, March 7, 2012)]
[Notices]
[Pages 13676-13678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5473]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-66501; File No. SR-BX-2012-014]
Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule To Amend the BOX
LLC Agreement
March 1, 2012.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on February 22, 2012, NASDAQ OMX BX, Inc. (the ``Exchange'') 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. The Exchange filed the
proposed rule change pursuant to Section 19(b)(3)(A) of the Act,\3\ and
Rule 19b-4(f)(6) thereunder,\4\ which renders the proposal effective
upon filing with the Commission. The Commission is publishing this
notice to solicit comments on the proposed rule change from interested
persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A).
\4\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change
The Exchange proposes to amend the Sixth Amended and Restated
Operating Agreement (``BOX LLC Agreement'') of the Boston Options
Exchange Group LLC (``BOX LLC''), in connection with the proposed
acquisition of TMX Group Inc., a company incorporated in Ontario,
Canada (``TMX Group'') by Maple Group Acquisition Corporation, a
company incorporated in Ontario, Canada (``Maple''). The text of the
proposed rule change is available from the principal office of the
Exchange, at the Commission's Public Reference Room and also on the
Exchange's Internet Web site at http://nasdaqomxbx.cchwallstreet.com/NASDAQOMXBX/Filings/.
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 these statements may be examined at
the places specified in Item IV below. The self-regulatory organization
has prepared summaries, set forth in 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
On January 13, 2004, the Commission approved four Exchange
proposals that together established, through an operating agreement
among its owners, BOX LLC, a Delaware limited liability company, to
operate BOX as an options trading facility of the Exchange.\5\
---------------------------------------------------------------------------
\5\ See Securities Exchange Act Release No. 49066 (January 13,
2004), 69 FR 2773 (January 20, 2004) (establishing a fee schedule
for the proposed BOX facility); Securities Exchange Act Release No.
49065 (January 13, 2004), 69 FR 2768 (January 20, 2004) (creating
Boston Options Exchange Regulation LLC to which the Exchange would
delegate its self-regulatory functions with respect to the BOX
facility); Securities Exchange Act Release No. 49068 (January 13,
2004), 69 FR 2775 (January 20, 2004) (approving trading rules for
the BOX facility); Securities Exchange Act Release No. 49067
(January 13, 2004), 69 FR 2761 (January 20, 2004) (approving certain
regulatory provisions of the operating agreement of BOX LLC).
---------------------------------------------------------------------------
Currently, the Montreal Exchange Inc., a company incorporated in
Quebec, Canada (``MX''), is a direct subsidiary of TMX Group. MX US 2,
Inc., a Delaware corporation and indirect, wholly owned subsidiary of
MX (``MX US''), holds a 53.83% ownership interest in BOX LLC.
The Exchange is submitting the proposed rule change to the
Commission to amend the BOX LLC Agreement pursuant to the proposed
Instrument of Accession in connection with the Acquisition (as defined
below).
Maple's investors comprise Alberta Investment Management
Corporation, Caisse de d[eacute]p[ocirc]t et placement du
Qu[eacute]bec, Canada Pension Plan Investment Board, CIBC World Markets
Inc., Desjardins Financial Corporation, Dundee Capital Markets Inc.,
Fonds de solidarit[eacute] des travailleurs du Qu[eacute]bec (F.T.Q.),
GMP Capital Inc., The Manufacturers Life Insurance Company, National
Bank Financial & Co. Inc., Ontario Teachers' Pension Plan Board, Scotia
Capital Inc. and TD Securities
[[Page 13677]]
Inc. (collectively, the ``Investors''). All of the Investors or their
respective affiliates currently own common shares of Maple (the ``Maple
Shares''). Each of the Investors currently owns less than 12% of Maple.
The Maple Shares are currently privately held, not listed on any
recognized exchange and not qualified for public distribution. However,
after the completion of the second step of the Acquisition, the Maple
Shares will be freely tradable (subject to 5-year contractual
standstill arrangements to which some of the Investors have agreed to
comply) and will be listed for trading on the Toronto Stock Exchange.
Following the Acquisition, each of the Investors will own less than 9%
of Maple and current shareholders of TMX Group will own at least 26% of
Maple.
The Acquisition will be effected in two steps--(1) an offer (the
``Offer'') by Maple to the shareholders of TMX Group to exchange a
minimum of 70% and a maximum of 80% of the outstanding common shares of
TMX Group (``TMX Group Shares'') for cash, and (2) a subsequent
transaction pursuant to a court-approved ``plan of arrangement'' \6\
whereby TMX Group shareholders whose TMX Shares have not been acquired
under the Offer will receive Maple Shares in exchange for their TMX
Group Shares (the ``Subsequent Arrangement'', and collectively with the
Offer, the ``Acquisition''). The Offer is set to expire on February 29,
2012, unless extended in accordance with the terms thereof, and subject
to the terms and the conditions of the Offer, Maple will pay for TMX
Group Shares validly deposited under the Offer and not properly
withdrawn, ten days after the expiration of the Offer. If the Offer is
successful, Maple will use its best efforts to complete the Subsequent
Arrangement within 35 days after the expiration of the Offer.
---------------------------------------------------------------------------
\6\ A ``plan of arrangement'' is a statutory procedure available
under the Business Corporations Act (Ontario) as well as under the
Canada Business Corporations Act and provincial corporations
statutes. Where a corporation wishes to combine (or to make any
other ``fundamental change'') but cannot achieve the result it wants
under another section of the statute, it can apply to the court for
an order approving a proposed ``plan of arrangement''.
---------------------------------------------------------------------------
As a result of the Acquisition, if successful, TMX Group will
become a direct, wholly owned subsidiary of Maple. Consequently, MX US
(including MX US's 53.83% ownership interest in BOX LLC) will become an
indirect, wholly owned subsidiary of Maple. The Offer is subject to
several conditions, including certain regulatory approvals, including,
but not limited to, certain approvals from the Ontario Securities
Commission, Autorit[eacute] des march[eacute]s financiers
(Qu[eacute]bec), Alberta Securities Commission, British Columbia
Securities Commission, Competition Bureau (Canada) and the Commission.
Maple has developed a preliminary business plan that it anticipates
would be implemented upon completion of the Acquisition. The operations
of each of MX and TMX Group will continue to be located in the same
province in which it is currently located, and each will remain subject
to its existing regulatory framework and oversight, including any
changes to the recognition orders governing MX and TMX Group and
additional undertakings that may be required by Canadian securities
regulators as a condition of approving the Acquisition. MX US's
management of its ownership interest in BOX will remain essentially
unaffected by the Acquisition. Ownership of BOX through TMX Group, MX
and MX US will not be affected by, and the ability of these entities to
influence BOX will not change as a result of, the Acquisition.
Pursuant to Section 8.4(g) of the BOX LLC Agreement, as previously
approved by the Commission, BOX LLC is required to amend the BOX LLC
Agreement to make a Controlling Person \7\ a party to the BOX LLC
Agreement if such Controlling Person establishes a Controlling Interest
\8\ in any member of BOX LLC that, alone or together with any Affiliate
\9\ of such member of BOX LLC, holds a Percentage Interest \10\ in BOX
equal to or greater than 20%.\11\ Therefore, since Maple is acquiring a
Controlling Interest in TMX Group, whose wholly owned indirect
subsidiary, MX US, owns a 53.83% ownership interest in BOX LLC, Maple,
as a Controlling Person, is required to be, and will become, a party to
the BOX LLC Agreement pursuant to the proposed Instrument of Accession.
As a result, Maple will agree to abide by all the provisions of the BOX
LLC Agreement, including those provisions requiring submission to the
jurisdiction of the Commission.\12\ The Exchange proposes to make this
proposal operative upon the successful completion of the Offer, which
is currently scheduled to expire on February 29, 2012.
---------------------------------------------------------------------------
\7\ A ``Controlling Person'' is defined as ``a Person who, alone
or together with any Affiliate of such Person, holds a controlling
interest in a [BOX] Member.'' See Section 8.4(g)(v)(B), BOX LLC
Agreement.
\8\ A ``Controlling Interest'' is defined as ``the direct or
indirect ownership of 25% or more of the total voting power of all
equity securities of a Member (other than voting rights solely with
respect to matters affecting the rights, preferences, or privileges
of a particular class of equity securities), by any Person, alone or
together with any Affiliate of such Person.'' See Section
8.4(g)(v)(A), BOX LLC Agreement.
\9\ An ``Affiliate'' is defined as ``, with respect to any
Person, any other Person controlling, controlled by or under common
control with, such Person. As used in this definition, the term
``control'' means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
securities, by contract or otherwise with respect to such Person. A
Person is presumed to control any other Person, if that Person: (i)
Is a director, general partner, or officer exercising executive
responsibility (or having similar status or performing similar
functions); (ii) directly or indirectly has the right to vote 25
percent or more of a class of voting security or has the power to
sell or direct the sale of 25 percent or more of a class of voting
securities of the Person; or (iii) in the case of a partnership, has
contributed, or has the right to receive upon dissolution, 25
percent or more of the capital of the partnership.'' See Section
1.1, BOX LLC Agreement.
\10\ The ``Percentage Interest'' is defined as ``the ratio of
the number of Units held by the Member to the total of all of the
issued Units, expressed as a percentage and determined with respect
to each class of Units, whenever applicable.'' See Section 1.1, BOX
LLC Agreement.
\11\ See Section 8.4(g), BOX LLC Agreement.
\12\ The BOX LLC Agreement states, in part, that ``the Members,
officers, directors, agents, and employees of Members irrevocably
submit to the exclusive jurisdiction of the U.S. federal courts,
U.S. Securities and Exchange Commission, and the Boston Stock
Exchange, for the purposes of any suit, action or proceeding
pursuant to U.S. federal securities laws, the rules or regulations
thereunder, arising out of, or relating to, BOX activities or
Article 19.6(a), (except that such jurisdictions shall also include
Delaware for any such matter relating to the organization or
internal affairs of BOX, provided that such matter is not related to
trading on, or the regulation, of the BOX Market), and hereby waive,
and agree not to assert by way of motion, as a defense or otherwise
in any such suit, action or proceeding, any claims that they are not
personally subject to the jurisdiction of the U.S. Securities and
Exchange Commission, that the suit, action or proceeding is an
inconvenient forum or that the venue of the suit, action or
proceeding is improper, or that the subject matter hereof may not be
enforced in or by such courts or agency.'' See BOX LLC Agreement,
Section 19.6.
---------------------------------------------------------------------------
For the reasons stated above, the Exchange is submitting to the
Commission the proposed Instrument of Accession to the BOX LLC
Agreement as a rule change.
2. Statutory Basis
The Exchange believes that the proposal is consistent with the
requirements of Section 6(b) of the Act,\13\ in general, and furthers
the objectives of Section 6(b)(1),\14\ in particular, in that it
enables the Exchange to be so organized so 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
[[Page 13678]]
rules of the Exchange. The Exchange also believes that this filing
furthers the objectives of Section 6(b)(5) of the Act \15\ in that it
is designed to facilitate transactions in securities, 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.
---------------------------------------------------------------------------
\13\ 15 U.S.C. 78f(b).
\14\ 15 U.S.C. 78f(b)(5) [sic].
\15\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
Additionally, the Exchange notes that the provisions of the BOX LLC
Agreement, previously approved by the Commission, provide a framework
for addressing the Acquisition. Accordingly, the Exchange believes the
Acquisition does not present any novel issues that have not been
anticipated and addressed by the BOX LLC Agreement.
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 not necessary or appropriate in
furtherance of the purposes of the Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
The Exchange has neither solicited nor received comments on the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule change does not significantly
affect the protection of investors or the public interest, does not
impose any significant burden on competition, and, by its terms, does
not become operative for 30 days from the date on which it was filed,
or such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \16\ and Rule 19b-
4(f)(6) thereunder.\17\
---------------------------------------------------------------------------
\16\ 15 U.S.C. 78s(b)(3)(A).
\17\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires the Exchange to give the Commission written notice of the
Exchange's 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.
---------------------------------------------------------------------------
The Exchange has requested that the Commission waive the 30-day
operative delay. The Commission believes that waiver of the operative
delay is consistent with the protection of investors and the public
interest because the Acquisition does not present any novel issues that
have not been anticipated and addressed by the BOX LLC Agreement.
Therefore, the Commission designates the proposal operative upon
filing.\18\
---------------------------------------------------------------------------
\18\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------
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.
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-BX-2012-014 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-BX-2012-014. 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, 100 F
Street, NE., Washington, DC 20549, on official business days between
the hours of 10 a.m. and 3 p.m. Copies of such filing also will be
available for inspection and copying at the principal office 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
publicly available. All submissions should refer to File Number SR-BX-
2012-014, and should be submitted on or before March 28, 2012.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
---------------------------------------------------------------------------
\19\ 17 CFR 200.30-3(a)(12).
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-5473 Filed 3-6-12; 8:45 am]
BILLING CODE 8011-01-P