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U.S. Securities and Exchange Commission

SECURITIES AND EXCHANGE COMMISSION

(Release No. 34-61400; File No. 10-198)

January 22, 2010

Form 1 Application and Exhibits

Cover Letter

Form 1 Execution Page


Exhibit Index*

Exhibit A A copy of the constitution, articles of incorporation or association with all subsequent amendments, and of existing by-laws or corresponding rules or instruments, whatever the name, of the applicant.
Exhibit B A copy of all written rulings, settled practices having the effect of rules, and interpretations of the Governing Board or other committee of the applicant in respect of any provisions of the constitution, by-laws, rules, or trading practices of the applicant which are not included in Exhibit A.
Exhibit C Information relating to each subsidiary or affiliate of the applicant, and of any entity with whom the applicant has a contractual or other agreement relating to the operation of an electronic trading system to be used to effect transactions on the exchange.
Exhibit D Financial statements for each subsidiary or affiliate of the exchange.
Exhibit E Description of proposed operation of the exchange
Exhibit F A complete set of all forms pertaining to the application for membership and the approval of a person as associated with a member.
Exhibit G Financial statements, reports or questionnaires required of members, participants, subscribers or any other users relating to financial responsibility or minimum capital requirements for such members, participants or any other users.
Exhibit H Listing applications of the applicant, including any agreements required to be executed in connection with listing and a schedule of listing fees.
Exhibit I Audited financial statements of the applicant for the latest fiscal year.
Exhibit J A list of the officers, governors, members of all standing committees, or persons performing similar functions for the applicant.
Exhibit K Shareholders owning 5% or more of the applicant.
Exhibit L Exchange membership criteria and conditions under which members may be subject to suspension or termination with regard to access to the exchange.
Exhibit M List of members of the exchange.
Exhibit N Schedule of securities listed or traded pursuant to unlisted trading privileges on the exchange.

* This exhibit index summarizes the exhibits required by the Form 1 Application for Registration as a National Securities Exchange.


Exhibit A

Exhibit Request:

A copy of the constitution, articles of incorporation or association with all subsequent amendments, and of existing by-laws or corresponding rules or instruments, whatever the name, of the applicant.

Response:

BATS Y-Exchange, Inc. (“BATS YX” or the “Exchange”) is applying to register as a national securities exchange pursuant to Section 6(a) of the Securities Exchange Act of 1934. The following materials are submitted in response to this Exhibit A:

  1. Certificate of Incorporation of BATS Y-Exchange, Inc. (attached as Exhibit A(1))
     
  2. By-Laws of BATS Y-Exchange, Inc. (attached as Exhibit A(2))
     
  3. Proposed Amended and Restated By-Laws of BATS Y-Exchange, Inc. (attached as Exhibit A(3))

Exhibit B

Exhibit Request:

A copy of all written rulings, settled practices having the effect of rules, and interpretations of the Governing Board or other committee of the applicant in respect of any provisions of the constitution, by-laws, rules, or trading practices of the applicant which are not included in Exhibit A.

Response:

  1. Proposed Rules of BATS Y-Exchange, Inc. (attached as Exhibit B(1))

Exhibit C

Exhibit Request:

For each subsidiary or affiliate of the applicant, and for any entity with whom the applicant has a contractual or other agreement relating to the operation of an electronic trading system to be used to effect transactions on the exchange ("System"), provide the following information:

  1. Name and address of organization.
     
  2. Form of organization (e.g., association, corporation, partnership, etc.).
     
  3. Name of state and statute citation under which organized. Date of incorporation in present form.
     
  4. Brief description of nature and extent of affiliation.
     
  5. Brief description of business or functions. Description should include responsibilities with respect to operation of the System and/or execution, reporting, clearance, or settlement of transactions in connection with operation of the System.
     
  6. A copy of the constitution.
     
  7. A copy of the articles of incorporation or association including all amendments.
     
  8. A copy of existing by-laws or corresponding rules or instruments.
     
  9. The name and title of the present officers, governors, members of all standing committees or persons performing similar functions.
     
  10. An indication of whether such business or organization ceased to be associated with the applicant during the previous year, and a brief statement of the reasons for termination of the association.

Response:

Please see below responses for the following entities:

A. BATS Exchange, Inc.

  1. Name: BATS Exchange, Inc.
    Address: 8050 Marshall Dr., Ste. 120, Lenexa, KS 66214
     
  2. Form of organization: Corporation.
     
  3. Name of state, statute under which organized and date of incorporation: Incorporated in Delaware under Section 101 of the General Corporation Law of the State of Delaware on November 1, 2007.
     
  4. Brief description of nature and extent of affiliation: BATS Exchange, Inc. (“BATS Exchange”) is wholly-owned by BATS Global Markets, Inc., which will also be the applicant’s 100% owner.
     
  5. Brief description of business or functions: BATS Exchange operates as a national securities exchange registered with the Commission pursuant to Section 6(a) of the Securities Exchange Act of 1934. BATS Exchange currently functions in the same manner as is proposed for the operation of BATS YX. The pricing for access to and use of BATS Exchange and the pricing for access to and use of BATS YX will differ. Other features of BATS Exchange and BATS YX may differ in the future, subject to necessary rule filings with the Commission.
     
  6. Copy of constitution: Not applicable.
     
  7. Copy of articles of incorporation or association and amendments: Attached as Exhibit C(1).
     
  8. Copy of existing by-laws: Attached as Exhibit C(2).
     
  9. Name and title of present officers, governors, members of standing committees and persons performing similar functions:

    CURRENT DIRECTORS:

    • Joe Ratterman
    • James Selway
    • Cameron Smith
    • Chris Isaacson
    • Brett Redfearn
    • Peter Wallison
    • David Roscoe
    • Harry Temkin
    • Sandy Kemper
    • Scott Wagner

    CURRENT OFFICERS:

    • Joe Ratterman (Chief Executive Officer, President)
    • Chris Isaacson (Senior Vice President, Chief Operating Officer, Treasurer)
    • Tami Schademann (Senior Vice President, Chief Regulatory Officer, Secretary)
    • Eric Swanson (Senior Vice President, General Counsel)
    • Craig Perrigo (Chief Financial Officer)
    • Phil Ratterman (Vice President, Software Development)
    • Charles Randy Williams (Vice President, Sales & Communications)
    • Jeromee Johnson (Vice President, Market Development)
    • Anders Franzon (Vice President, Associate General Counsel)

    STANDING COMMITTEES:

    Compensation Committee

    • Peter Wallison
    • Sandy Kemper
    • Harry Temkin

    Audit Committee

    • Scott Wagner
    • David Roscoe
    • Cameron Smith

    Regulatory Oversight Committee

    • Harry Temkin
    • Sandy Kemper
    • Peter Wallison

    Appeals Committee

    • Brett Redfearn
    • James Selway
    • Scott Wagner

    Executive Committee

    • Joe Ratterman
    • Cameron Smith
    • Sandy Kemper
    • David Roscoe
    • Harry Temkin
       
  10. Indication of whether such business or organization ceased to be associated with the applicant during previous year: Not applicable.

A. BATS Trading, Inc.

  1. Name: BATS Trading, Inc.
    Address: 8050 Marshall Dr., Ste. 120, Lenexa, KS 66214
     
  2. Form of organization: Corporation.
     
  3. Name of state, statute under which organized and date of incorporation: Incorporated in Delaware under Section 101 of the General Corporation Law of the State of Delaware on June 16, 2005.
     
  4. Brief description of nature and extent of affiliation: BATS Trading, Inc. (“BATS Trading”) is wholly-owned by BATS Global Markets, Inc., which will also be the applicant’s 100% owner.
     
  5. Brief description of business or functions: BATS Trading will provide outbound routing of orders from the Exchange to other securities exchanges, facilities of securities exchanges, automated trading systems, electronic communication networks or other broker-dealers. BATS Trading will also provide inbound routing of orders from the Exchange’s affiliate, BATS Exchange, Inc. See Exhibit E and proposed Exchange Rule 2.11 for details regarding BATS Trading.
     
  6. Copy of constitution: Not applicable.
     
  7. Copy of articles of incorporation or association and amendments: Attached as Exhibit C(3).
     
  8. Copy of existing by-laws: Attached as Exhibit C(4).
     
  9. Name and title of present officers, governors, members of standing committees and persons performing similar functions:

    Current Directors

    • Joe Ratterman
    • Chris Isaacson
    • Tami Schademann

    Current Officers

    • Chris Isaacson (President, Treasurer)
    • Tami Schademann (Chief Compliance Officer, Secretary)
    • Craig Perrigo (FINOP)
       
  10. Indication of whether such business or organization ceased to be associated with the applicant during previous year: Not applicable.

A. BATS Global Markets, Inc.

  1. Name: BATS Global Markets, Inc. (“BATS Global Markets”)
    Address: 8050 Marshall Dr., Ste. 120, Lenexa, KS 66214
     
  2. Form of organization: Corporation.
     
  3. Name of state, statute under which organized and date of incorporation: Incorporated in Delaware under Section 101 of the General Corporation Law of the State of Delaware on June 29, 2007.
     
  4. Brief description of nature and extent of affiliation: BATS Global Markets will be the applicant’s 100% owner.
     
  5. Brief description of business or functions: BATS Global Markets will be the entity through which the ultimate owners of the applicant indirectly hold their ownership interest in the applicant and its affiliates.
     
  6. Copy of constitution: Not applicable.
     
  7. Copy of articles of incorporation or association and amendments: See attached Amended and Restated Certificate of Incorporation for BATS Global Markets, Inc. filed December 10, 2008 (Exhibit C(5)) and Proposed Amended and Restated Certificate of Incorporation for BATS Global Markets (Exhibit C(6)).
     
  8. Copy of existing by-laws: See attached the current Amended and Restated By-Laws of BATS Global Markets, Inc. (Exhibit C(7)) and Proposed Amended and Restated By-Laws for BATS Global Markets, Inc. (Exhibit C(8)).
     
  9. Name and title of present officers, governors, members of standing committees and persons performing similar functions:

    Directors

    • Joe Ratterman
    • David Cummings
    • Michael Richter
    • Mark O’Sullivan
    • Dan Mathisson
    • Steve Swanson
    • Robert Flatley
    • Brett Redfearn
    • Matt Frymier
    • John Katzenstein

    Officers

    • Joe Ratterman (President)
    • Chris Isaacson (Treasurer)
    • Tami Schademann (Secretary)

    Compensation Committee

    • Michael Richter
    • Dan Mathisson
    • Robert Flatley
       
  10. Indication of whether such business or organization ceased to be associated with the applicant during previous year: Not applicable.

A. BATS Trading Limited

  1. Name: BATS Trading Limited
    Address: 25 Copthall Ave., Ground Floor, London, UK EC2R 7BP.
     
  2. Form of organization: Corporation.
     
  3. Name of state, statute under which organized and date of incorporation: Incorporated in England and Wales under the Companies Act 1985 on March 28, 2008.
     
  4. Brief description of nature and extent of affiliation: BATS Trading Limited (“BATS Limited”) is wholly-owned by BATS Global Markets, Inc., which also will be the Exchange’s 100% owner.
     
  5. Brief description of business or functions: BATS Limited is authorised in the United Kingdom under the Financial Services and Markets Act 2000 (“FSMA”), as a multilateral trading facility and operates a platform for trading of European equity securities.
     
  6. Copy of constitution: Not applicable.
     
  7. Copy of articles of incorporation or association and amendments: Attached as Exhibit C(9).
     
  8. Copy of existing by-laws: Attached as Exhibit C(10).
     
  9. Name and title of present officers, governors, members of standing committees and persons performing similar functions:

    Current Directors

    • Mark Hemsley (Chairman)
    • Paul O’Donnell
    • Kenneth Conklin III
    • Nick Child
    • Bill Eldridge

    Current Officers

    • Mark Hemsley (CEO)
    • Paul O’Donnell (Chief Operating Officer)
    • Kenneth Conklin III (Senior Vice President, Business Development)
    • Eric Swanson (Secretary)
       
  10. Indication of whether such business or organization ceased to be associated with the applicant during previous year: Not applicable.

Exhibit D

Exhibit Request:

For each subsidiary or affiliate of the exchange, provide unconsolidated financial statements for the latest fiscal year. Such financial statements shall consist, at a minimum, of a balance sheet and an income statement with such footnotes and other disclosures as are necessary to avoid rendering the financial statements misleading. If any affiliate or subsidiary is required by another Commission rule to submit annual financial statements, a statement to that effect with a citation to the other Commission rule, may be provided in lieu of the financial statements required here.

Response:

  1. BATS Exchange, Inc., an affiliate of the applicant, filed financial statements for the year ended December 31, 2008 with the Commission pursuant to Rule 6a-2(b)(1) under the Securities Exchange Act of 1934.
     
  2. BATS Trading, Inc., an affiliate of the applicant, filed financial statements for the year ended December 31, 2008 with the Commission pursuant to Rule 17a-5 under the Securities Exchange Act of 1934.
     
  3. Financial statements for the year ended December 31, 2008 for BATS Global Markets, Inc., the applicant’s parent, were filed with the Commission pursuant to Rule 6a-2(b)(1) under the Securities Exchange Act of 1934 (applicable to BATS Exchange, Inc.).
     
  4. Financial statements for the year ended December 31, 2008 for BATS Trading Limited, an affiliate of the applicant, were filed with the Commission pursuant to Rule 6a-2(b)(1) under the Securities Exchange Act of 1934 (applicable to BATS Exchange, Inc.).

Exhibit E

Exhibit Request:

Describe the manner of operation of the System. This description should include the following:

  1. The means of access to the System.
     
  2. Procedures governing entry and display of quotations and orders in the System.
     
  3. Procedures governing the execution, reporting, clearance and settlement of transactions in connection with the System.
     
  4. Proposed fees.
     
  5. Procedures for ensuring compliance with System usage guidelines.
     
  6. The hours of operation of the System, and the date on which applicant intends to commence operation of the System.
     
  7. Attach a copy of the users’ manual.
     
  8. If applicant proposes to hold funds or securities on a regular basis, describe the controls that will be implemented to ensure safety of those funds or securities.

Response:

A. Introduction

BATS Y-Exchange, Inc. (“Exchange” or “BATS YX”) proposes to register as a national securities exchange under Section 6 of the Securities Exchange Act of 1934, as amended (“Exchange Act”). The Exchange will be owned by its parent company, BATS Global Markets, Inc. (“BATS Global Markets”), which will elect all directors of the Board of Directors of the Exchange, except for those directors approved by members pursuant to Article III, Section 4 of the By-Laws of the Exchange. The members of the Exchange (“Members”) will consist of those broker-dealers admitted to membership and entitled to enter orders in, and receive executions through, the Exchange’s order book (as defined below) or otherwise. Members will be subject to the rules of the Exchange, and will have representation on the Exchange’s Board of Directors and committees. Members who are not also shareholders of BATS Global Markets shall not have any ownership interest in the Exchange.

Once registered, the Exchange will operate a fully automated electronic book (“order book”) for orders to buy or sell securities (“orders”) with a continuous, automated matching function. Liquidity will be derived from orders to buy and orders to sell submitted to the Exchange electronically by its Members from remote locations. There will be no Exchange trading floor, however, the Exchange does intend to allow firms to register as market makers with affirmative and negative market making obligations as set forth in proposed Rules 11.5 through 11.8.

Membership in the Exchange will be open to any broker-dealer registered under Section 15(b) of the Exchange Act that meets the standards for membership set forth in proposed Exchange Rules 2.3 through 2.5. There will only be one class of membership, with all Members enjoying the same rights and privileges on the Exchange. Although the Exchange will permit Members to register as Exchange Market Makers, such Market Makers will not receive special privileges or rights vis--vis other Members. Members will be subject to fees for orders executed on the Exchange as set forth in the Rules of the Exchange or as may otherwise be determined by the Board of Directors of the Exchange from time-to-time. Exchange memberships will not be transferable except in the event of a change in control of a Member, and such transfer will be subject to the written consent of the Exchange, and to any conditions to such transfers imposed by the Exchange. The Exchange currently does not contemplate charging a fee for membership in the Exchange. A more detailed description of the membership criteria is set forth in Chapter II of the Exchange’s proposed rules. See Exhibit B, supra.

This exhibit describes, in summary form, the proposed operation of the Exchange. A more detailed description of the proposed Exchange is set forth in the proposed By-Laws and Rules of the Exchange. See Exhibits A and B to this Application.

B. Access to the Exchange (#1)

Member Access. Members of the Exchange, Service Bureaus on behalf of a Member, and “Sponsored Participants” (as described below, and together with Members and Service Bureaus, collectively referred to as “Access Participants” for purposes of this paragraph B) will be permitted to send orders to buy and sell securities listed or traded on the Exchange to the Exchange electronically through the use of a variety of systems. The Exchange will not accept telephone orders.

The Exchange has designed its systems to allow its Members to individually determine the best method for accessing the Exchange. Thus, Members may develop their own customized front-end software using protocols determined by the Exchange, or may use third-party vendors to route orders to the Exchange via a front end or service bureau configuration. Access Participants will be able to access the Exchange remotely through a variety of methods and connections that support a minimum data exchange rate, as may be determined by the Exchange from time-to-time.

Direct access to the Exchange is available to Access Participants at an Internet Protocol (“IP”) address by one or more of the following methods: (i) electronic access at the Exchange’s IP network address by the Access Participant’s own software, via communications that are compliant with the Financial Information Exchange (“FIX”) protocol application programmer interface (“API”) provided by the Exchange; (ii) electronic access at the IP network address maintained by the Exchange by the Access Participant’s own software that is compliant with the API provided by the Exchange; or (iii) other means of access provided from time to time by the Exchange.

Access Participants provide a unique IP address to the Exchange for each requested connection, and the Exchange then configures its routers to only allow access from the Access Participant’s IP address to a dedicated IP address on the Exchange’s order handling network. In this way, only authorized Access Participants can gain access to BATS via registered physical IP addresses.

Access Participants will be responsible for having procedures reasonably designed for safeguarding access to the Exchange and for notifying the Exchange upon learning that such safeguards have been compromised. Connectivity to the Exchange will occur through secure telecommunications “ports” or points of entry. Specifically, each Access Participant will be assigned a specific port, or multiple ports, each of which has a unique session identification code provided only to such Access Participant.

Non-Member Access. Non-members may access the Exchange through broker-dealer members of the Exchange, including the affiliated broker-dealers of other national securities exchanges. Non-members also may access the Exchange pursuant to Exchange rules governing “sponsored access” to the Exchange, as described below.

Sponsored Participant Access to the Exchange. The Exchange plans to permit access to the Exchange to entities (“Sponsored Participants”) whose access is authorized in advance by one or more members (“Sponsoring Member”) in accordance with Exchange Rules. The Sponsoring Member must agree to be responsible for all orders entered on the Exchange by the Sponsored Participant. In addition, Sponsored Participants must agree to comply with all applicable Rules of the Exchange governing the entry, execution, reporting, clearing and settling of orders in securities eligible for trading on the Exchange.

C. Entry and Display of Quotations and Orders in the System (#2)

Entry of Orders on the Exchange. The Exchange will accept the submission of orders by Exchange Members in securities admitted to unlisted trading privileges (“UTP”) on the Exchange. The Exchange will not list securities initially, though it may do so in the future. Accordingly, while this Application, including certain rules included in Exhibit B, contains references to securities listed or trading pursuant to UTP, the reference to securities listed on the Exchange is intended to be read prospectively.

Orders entered into BATS YX must be priced and must have a designated size (“limit orders”) or must be orders to buy or sell a stated amount of a security at the national best bid or offer when the order reaches the Exchange (“market orders”). Limit orders and market orders, as defined above, are hereinafter collectively referred to as “orders”. The Exchange proposes to cancel any portion of a market order submitted to the Exchange if such order would execute at a price that is more than 50 cents or 5 percent worse than the national best bid or the national best offer at the time the order initially reaches the Exchange, whichever is greater.

Orders will be accepted for any such security, whether submitted by a Member on a proprietary or agency basis, in any size up to 999,999 shares. Orders may be submitted in round lots or odd lots. To reduce the possibility of the entry of erroneously large orders, the Exchange will provide Members with the ability to establish parameters as to the maximum number of shares that can be entered on their behalf or on behalf of their clients in any given order.

Members may submit the following orders to the Exchange: IOC; Day; Good ‘til Cancel; Good ‘til Day; Good ‘til Extended Day; Reserve; Odd Lot; Mixed Lot; BATS Only; BATS Post Only; Partial Post Only at Limit; Pegged; Mid-Point Peg; Discretionary; Non-Displayed; Destination Specific; Modified Destination Specific; and Intermarket Sweep. Each of these types of orders is described in detail in proposed Exchange Rule 11.9. Members will also be permitted to enter short sales, in accordance with the provisions of Regulation SHO of the Exchange Act. The Exchange will maintain a full audit trail of every order submitted to the Exchange’s System. Members may receive status reports regarding orders submitted to the Exchange or change or cancel an order at any time before that order is executed on the Exchange. Exchange system functionality will prevent a locked or crossed market from being displayed by the Exchange with respect to orders to buy and orders to sell submitted to the Exchange.

All securities will be traded in decimals on the Exchange. The actual minimum price increment for orders for securities listed or trading pursuant to UTP on the Exchange will be determined from time-to-time by the Board of Directors of the Exchange, consistent with any Commission rules or regulations adopted in this regard.

Display of Orders. All orders submitted to the Exchange will be displayed unless designated otherwise by the Member submitting the order (“non-displayed orders”). Orders submitted to the Exchange for display shall be displayed on an anonymous basis at the price specified by the Member submitting the order. Non-displayed orders will not be displayed to any Member of the Exchange and will not have time priority over displayed orders. In addition, the Exchange intends to become a participant in the Consolidated Quotation Plan (“CQ Plan”) and Nasdaq-UTP Plan and will collect and submit to the relevant plan processor the best buy order and the best sell order displayed on the Exchange in Eligible Securities, as defined in these Plans, in accordance with the terms of the Plans.

Finally, to enhance transparency throughout the market, the Exchange intends to make its order book for any security traded on the Exchange available for viewing by any member of the public through the Exchange’s web site.

D. Order Routing to other Market Centers

Members may enter into agreements to use the routing services of an affiliated broker-dealer of the Exchange, which will enable Members to route to other market centers the unexecuted portions of designated Routable Orders entered on the Exchange. In this capacity, the affiliated broker-dealer will act as an agent of the Member. See Exhibit C and proposed Exchange Rules 2.11 and 2.12 for further details regarding the affiliated router. Members will have no obligation, however, to utilize the order routing functionality provided by the Exchange’s broker-dealer affiliate. Accordingly, Members can select other broker-dealers to provide order-routing functions or use their own internal order-routing systems. .

E. Execution, Reporting, Clearance and Settlement Procedures (#3)

Execution of Orders Submitted to Exchange’s order book. Trades will occur when an order to buy and an order to sell match on the Exchange’s order book. An order to buy submitted to the Exchange’s order book will be automatically executed by the Exchange’s order book to the extent that it is priced at an amount that equals or exceeds any order to sell for the same security submitted to the Exchange’s order book. Such order to buy shall be executed at the price of the lowest-priced order to sell having precedence on the Exchange’s order book. All orders are matched according to price-display-time priority. An order to sell submitted to the Exchange’s order book will be automatically executed by the Exchange’s order book to the extent that it is priced at an amount that equals or is less than any order to buy for the same security submitted to the Exchange’s order book. Such order to sell shall be executed at the price of the highest-priced order to buy having precedence on the Exchange’s order book. Proposed Rule 11.12 describes the priority given to orders at the same price. Non-displayed orders will have priority over orders at inferior prices, whether displayed or non-displayed, but will not have priority or time precedence over orders displayed at equal or superior prices. In the event that less than the full size of an order is executed, whether displayed or non-displayed, the unexecuted size of the order will continue to reside on the Exchange’s order book, and if displayed, will be redisplayed at such price. Such partially executed orders retain priority and precedence at the same price.

In executing orders submitted to the Exchange’s order book, the Exchange will not distinguish between orders submitted by Members for their own accounts and orders submitted by Members for their customers. Unlike exchanges that conduct trading via a physical trading floor, all Exchange Members will submit orders to the Exchange from remote locations and have equal access to orders residing on the Exchange. Similarly, because orders on the Exchange will be executed automatically, no Member of the Exchange will have the ability to control the timing of execution (other than to change or cancel an order prior to execution) or otherwise enjoy the type of special order handling advantages that may be available on the physical floor of an exchange. Moreover, as noted above, non-Members will have access to the display of orders on the Exchange’s order book through the Exchange’s web site.

The Exchange will have a policy that will permit it to address those instances in which transactions occurring on the Exchange involve obvious errors (“Clearly Erroneous Policy”). Under the Clearly Erroneous Policy, Members receiving an execution based on the entry of a buy or sell order that clearly was in error — in terms of price, quantity, or identification of the proper symbol for a security — will be permitted to request that the Exchange void the transaction. Using the numerical guidelines with consideration for other appropriate factors, as set forth in proposed Exchange Rule 11.17(c), Designated Exchange officials will review the transaction to determine whether, in fact, the transaction was clearly erroneous. If such officials determine that a trade is clearly erroneous, they shall declare the trade null and void. A Member may appeal the initial decision by Exchange officials to the Clearly Erroneous Panel, which will be comprised of the CRO, or a designee of the CRO, and representatives from two (2) Members. To the extent the Clearly Erroneous Panel upholds the initial ruling of the Exchange official, then the Exchange will assess a $500.00 fee to the appealing party. In addition, if another market center charges the Exchange for an unsuccessful appeal, which appeal has been filed by the Exchange at the request of a Member, then the Exchange will pass that fee on to the requesting Member. An officer of the Exchange or another senior level employee will also have the authority, on his or her own motion, to review and nullify transactions arising out of the use of the Exchange’s order book, including, but not limited to, during a period of disruption or malfunction, or in the event of extraordinary market conditions or other circumstances in which the nullification or modification of transactions may be necessary for the maintenance of a fair and orderly market or the protection of investors and the public interest.

Trade Reporting. The Exchange intends to become a participant in the Consolidated Tape Association Plan (“CTA Plan”) and will report trades in Eligible Securities (as defined in the CTA Plan) pursuant to the terms of the plan. Similarly, the Exchange expects to join the Nasdaq-UTP Plan and will report trades in Nasdaq securities traded on the Exchange that have been admitted to unlisted traded privileges pursuant to the provisions of that plan.

Clearance and Settlement of Exchange Trades. The Exchange will require each Member to be a member of a registered clearing agency or clear its transactions through a Member that is a member of a registered clearing agency.

F. Exchange Fees (#4)

Fees Generally. The Exchange currently does not propose to charge a fee for Exchange membership. The Exchange may, in the future, however, prescribe such reasonable dues, fees, and assessments or other charges as it may deem appropriate. Similarly, where there is no existing, matching, contra-side buy or sell order residing on the Exchange, Members entering orders on the Exchange’s order book will generally not be assessed a fee. Instead, Members entering orders under such circumstances will likely receive a credit from the Exchange for orders entered and later executed on the Exchange. There will not be a fee charged for changing or canceling an order prior to execution of such order. Exchange Members submitting buy or sell orders that execute against existing, matching, contra-side orders already residing on the Exchange will likely be charged a per share fee, payable to the Exchange on a monthly basis. The Exchange may periodically adjust its pricing model, including potentially offering trading on the Exchange free of charge and without any rebates. The Exchange may also charge a connectivity fee based on the number of ports utilized by the Member. Exchange Members will be solely responsible for all telecommunications costs and all other expenses incurred in linking to, and maintaining links to, the Exchange. The Exchange may pass on fees to a Member, however, to the extent the Exchange is charged a fee by a third party in connection with such Member’s connectivity to the Exchange. The Exchange may determine to revise or impose different fees upon its Members from time-to-time.

G. Procedures for Ensuring Compliance with Exchange Usage Guidelines (#5)

The Exchange System contains embedded Member order entry and trade guidelines. All data representing a Member’s order must comply with these guidelines. Members cannot override these embedded guidelines. With respect to technical standards, prior to allowing a new Member to begin trading, the Exchange and the Member will thoroughly test the Member’s connectivity. In addition, the Member may enter orders in test securities to ensure compatibility with the Exchange’s system protocol. A Member may begin trading only after the Exchange is satisfied that both the Member’s hardware and software meet the Exchange’s standards.

Members also must agree to maintain an adequate connection to the Exchange as defined from time-to-time by the Exchange that includes a connection of sufficient speed and equipment of minimum quality.

H. Hours of Operation and Proposed Commencement of the Exchange (#6)

The Exchange proposes to operate Monday to Friday from 8:00 a.m. Eastern Time to 5:00 p.m. Eastern Time, or during any other day or time approved by the Board of Directors of the Exchange.

The Exchange proposes to commence operations upon the Commission’s approval of its Form 1 Application for Registration as a National Securities Exchange.

I. Exchange Users Manual (#7)

As discussed above, Members will be provided with the Exchange’s technical specifications, which will enable them to develop or purchase their own, customized front-end software for interfacing with the Exchange. Members also may use third-party vendors to route orders to the Exchange via a front end or service bureau configuration. At a time closer to its initial operation as an exchange, the Exchange will file a draft Users Manual that will be provided to all Members and prospective Members of the Exchange. The Exchange’s Users Manual will likely be combined with, and virtually identical to, the attached Users Manual of the Exchange’s affiliate, BATS Exchange, Inc (see Exhibit E(1)). The Users Manual will describe the Exchange’s technical specifications and will provide Members, prospective Members and other users of the Exchange with additional information that the Exchange believes will be useful to such persons for trading on the Exchange.

J. Possession of Funds or Securities (#8)

The Exchange will not hold funds or securities of its Members.


Exhibit F

Exhibit Request:

A complete set of all forms pertaining to:

  1. Application for membership, participation or subscription to the entity.
     
  2. Application for approval as a person associated with a member, participant or subscriber of the entity.
     
  3. Any other similar materials.

Response:

Attached please find the following documents:

  1. Application Checklist — Exhibit F(1)
  2. Membership Application for BATS Y-Exchange — Exhibit F(2)
  3. Clearing Letter of Guarantee — Exhibit F(3)
  4. User Agreement — Exhibit F(4)
  5. Routing Agreement for Members — Exhibit F(5)
  6. Exchange Data Vendor Agreement — Exhibit F(6)
  7. Service Bureau Information Form — Exhibit F(7)
  8. Service Bureau Port Fee Agreement — Exhibit F(8)
  9. Service Bureau Agreement — Exhibit F(9)
  10. Waive-In Membership Application Form — Exhibit F(10)
  11. Sponsored Access Information Form — Exhibit F(11)
  12. Sponsoring Member Consent — Exhibit F(12)
  13. Sponsored Participant Agreement — Exhibit F(13)
  14. Extranet Data Redistribution Agreement — Exhibit F(14)
  15. Market Maker Application — Exhibit F(15)

The Exchange intends to use Form U-4, the Uniform Application for Securities Industry Registration or Transfer, for persons applying to be associated persons of a Member.


Exhibit G

Exhibit Request:

A complete set of all forms of financial statements, reports or questionnaires required of members, participants, subscribers, or any other users relating to financial responsibility or minimum capital requirements for such members, participants, or any other users. Provide a table of contents listing the forms included in this Exhibit G.

Response:

As broker-dealers, Members of the Exchange will be required to comply with the Commission’s net capital and customer protection rules set forth in Rules 15c3-1 and 15c3-3 of the Securities Exchange Act of 1934, as amended. See also, proposed Exchange Rules 2.5, 3.6(e), 3.8, 3.17 and 3.20. In addition, a Member that fails or is unable to perform any of its contracts or is insolvent is required to immediately notify the Exchange in writing. Moreover, whenever it appears that a Member has failed to perform its contracts, is insolvent or in such other financial and operating condition or is conducting its business in a manner that is not safe to customers, creditors and other Members of the Exchange, the Chief Regulatory Officer of the Exchange may summarily suspend the Member. See proposed Exchange Rule 7.1.

Other than those forms and financial statements required to be submitted with an application for Exchange membership (see Exhibit F), the Exchange will not have specific forms of financial statements, reports or questionnaires required of its Members with respect to financial responsibility or minimum capital requirements.


Exhibit H

Exhibit Request:

A complete set of documents comprising the applicant’s listing applications, including any agreements required to be executed in connection with listing and a schedule of listing fees. If the applicant does not list securities, provide a brief description of the criteria used to determine what securities may be traded on the exchange. Provide a table of contents listing the forms included in this Exhibit H.

Response:

BATS Y-Exchange does not intend to offer original listing on the Exchange upon commencement of operations, but rather, intends on trading only securities that have been admitted pursuant to unlisted trading privileges. For a description of the listing standards for BATS Y-Exchange, Inc. please refer to Chapter XIV of the Exchange’s Proposed Rules. See Exhibit B, supra. These listing standards are substantially similar to the listing standards used by BATS Exchange, Inc., as well as the ISE Stock Exchange, LLC, the equities trading facility of the International Securities Exchange.


Exhibit I

Exhibit Request:

For the latest fiscal year of the applicant, audited financial statements which are prepared in accordance with, or in the case of a foreign applicant, reconciled with, United States generally accepted accounting principles, and are covered by a report prepared by an independent public accountant. If an applicant has no consolidated subsidiaries, it shall file audited financial statements under Exhibit I alone and need not file a separate unaudited financial statement for the applicant under Exhibit D.

Response:

BATS Y-Exchange, Inc., the applicant, was recently formed, and thus, does not yet have audited financial statements for the latest fiscal year. The Exchange will file pro forma financial statements when it is closer to commencing operations as a national securities exchange.


Exhibit J

Exhibit Request:

A list of the officers, governors, members of all standing committees, or persons performing similar functions, who presently hold or have held their offices or positions during the previous year, indicating the following for each:

Name.

Title.

Dates of commencement and termination of term of office or position.

Type of business in which each is primarily engaged (e.g., floor broker, specialist, odd lot dealer, etc.)

Response:

The Exchange will initially be managed by the same individuals who manage BATS Exchange, Inc. Accordingly, the anticipated initial officers of the Exchange are all current officers of BATS Exchange, Inc. In addition, subject to the eligibility criteria and the nomination and election provisions of the proposed Exchange By-Laws, the Exchange will likely have certain Directors that serve on its Board and also serve as Directors on the Board of BATS Exchange, Inc.

1. Officers

On a temporary basis, Joe Ratterman has been appointed as the President and Chief Executive Officer of the Exchange entity, Tami Schademann has been as appointed as the Secretary, and Chris Isaacson has been appointed as the Treasurer. Prior to commencing operation as an Exchange, and pursuant to the Certificate of Incorporation and By-Laws of the Exchange, the Exchange’s Board of Directors will likely appoint the individuals listed below as Initial Officers of the Exchange. Officers shall be appointed by the Board on an annual basis. These individuals will serve in these positions until their successors are appointed in accordance with the Certificate of Incorporation and By-Laws. Officers of the Exchange will serve at the pleasure of the Board of Directors.

Initial Officers
Name: Title: Date of Commencement
Joe Ratterman Chief Executive Officer, President [UPON APPROVAL]
Chris Isaacson Senior Vice President, Chief Operating Officer, Treasurer [UPON APPROVAL]
Tami Schademann Senior Vice President, Chief Regulatory Officer, Secretary [UPON APPROVAL]
Eric Swanson Senior Vice President, General Counsel  
Craig Perrigo Chief Financial Officer [UPON APPROVAL]
Phil Ratterman Vice President Software Development [UPON APPROVAL]
Charles Randy Williams Vice President, Sales & Communications [UPON APPROVAL]
Jeromee Johnson Vice President, Market Development [UPON APPROVAL]
Anders Franzon Vice President, Associate General Counsel [UPON APPROVAL]

2. Directors

On a temporary basis, Joe Ratterman has been appointed as the sole director of the Exchange entity. Upon the approval of BATS Y-Exchange’s Form 1 Application for Registration as a National Securities Exchange by the Commission, BATS Global Markets, Inc. (“BATS Global Markets”), as the sole owner of the common stock in the Exchange, will elect directors in accordance with the Certificate of Incorporation and By-Laws of the Exchange and of BATS Global Markets. Directors of the Exchange will serve staggered, three-year terms. The initial directors of the Exchange will likely be the persons listed below:

Initial Directors
Chairman: [TO BE PROVIDED]
Member Representative: [TO BE PROVIDED]
Member Representative: [TO BE PROVIDED]
Industry: [TO BE PROVIDED]
Industry: [TO BE PROVIDED]
Non-Industry (Independent): [TO BE PROVIDED]
Non-Industry: [TO BE PROVIDED]
Non-Industry: [TO BE PROVIDED]
Non-Industry: [TO BE PROVIDED]
Non-Industry: [TO BE PROVIDED]

3. Committees

The committees of the Board shall consist of a Compensation Committee, an Audit Committee, a Regulatory Oversight Committee, an Appeals Committee, and such other committees as may be from time to time established by the Board. Upon the approval of BATS Y-Exchange’s Form 1 Application for Registration as a National Securities Exchange by the Commission, and after the election of the Board, the Chairman, with the approval of the Board, shall appoint persons to sit on the standing committees of the Board, consistent with the Exchange’s By-Laws.


Exhibit K

Exhibit Request:

This Exhibit is applicable only to exchanges that have one or more owners, shareholders, or partners that are not also members of the exchange. If the exchange is a corporation, please provide a list of each shareholder that directly owns 5% or more of a class of a voting security of the applicant. If the exchange is a partnership, please provide a list of all general partners and those limited and special partners that have the right to receive upon dissolution, or have contributed, 5% or more of the partnership’s capital. For each of the persons listed in the Exhibit K, please provide the following:

  1. Full legal name;
     
  2. Title or Status;
     
  3. Date title or status was acquired;
     
  4. Approximate ownership interest; and
     
  5. Whether the person has control, a term that is defined in the instructions to this Form.

Response:

BATS Y-Exchange will be wholly-owned by BATS Global Markets, Inc. (“BATS Global Markets”). BATS Global Markets will exercise “control” over the Exchange, as that term is defined in the Form 1 instructions. BATS Global Markets will acquire its interest in the Exchange closer to the time of anticipated operation of the Exchange.


Exhibit L

Exhibit Request:

Describe the exchange’s criteria for membership in the exchange. Describe conditions under which members may be subject to suspension or termination with regard to access to the exchange. Describe any procedures that will be involved in the suspension or termination of a member.

Response:

Membership on the Exchange will be open to any registered broker or dealer or any natural person associated with a registered broker or dealer. Any person may become an associated person of a Member of the Exchange. Exchange Members will be entitled to enter and view orders to buy and sell securities listed or admitted to unlisted trading privileges on the Exchange in accordance with Exchange Rules.

To become a Member of the Exchange, or continue as a Member of the Exchange, a person: (1) if other than a natural person, must be a registered broker or dealer, (2) if a natural person, must be either a registered broker or dealer or associated with a registered broker or dealer, (3) must be a member of another self-regulatory organization other than the Exchange’s affiliate BATS Exchange, Inc., (4) must either be a member of a registered clearing agency qualified by the Exchange or clear transactions through a member of such a qualified clearing agency, (5) must not be subject to a statutory disqualification (except pursuant to an order of the Securities and Exchange Commission permitting such membership), (6) must meet the standards of training, experience and competence as the exchange may prescribe, (7) must comply with Rule 15c3-1 of the Securities Exchange Act of 1934, as amended (“Exchange Act”), and other financial responsibility and operational capability requirements that may be established by the Exchange, (8) must be able to comply with the rules of the Exchange, including rules related to the maintenance of appropriate books and records, (9) must be able to demonstrate adequate systems capability, capacity, integrity and security, (10) must not be subject to unsatisfied material liens, judgments, and claims, (11) must not have been subject to any bankruptcy, receivership or arrangement for the benefit of creditors within a three year period, (12) must not have established a pattern of failure to pay just debts or defaulted, without reasonable explanation, on an obligation to another self-regulatory organization or member thereof, and (13) must not have engaged in acts or practices inconsistent with just and equitable principles of trade. Members may be suspended for failure to pay Exchange dues, fees and assessments, or if they have been expelled or suspended from membership, or association in another self-regulatory organization.

As proposed, the Exchange will require registration of Authorized Traders, who are required to pass the General Securities Representative Examination (“Series 7” or equivalent foreign examination module approved by the Exchange). See proposed Exchange Rule 2.5, Interpretation and Policy .01(c) and proposed Exchange Rule 11.4(e). In addition, as proposed, the Exchange will require Members to register certain associated persons with the Exchange who have passed the General Securities Principal Examination (“Series 24”) and the Financial and Operations Principal Examination (“Series 27”). See proposed Exchange Rule 2.5, Interpretation and Policies .01(d) and (e). The Exchange’s affiliated national securities exchange, BATS Exchange, Inc., may make modifications to its registration rules over the next several months that would result in a difference in registration requirements between the two exchanges. Because the Exchange intends to have registration rules identical to those of BATS Exchange, Inc., it represents that it will incorporate any such changes to its Rules prior to commencing operations as a national securities exchange.

Applicants for membership on the Exchange will be required to complete a membership application agreeing, among other things, to comply with the By-Laws, Rules and interpretations of the Exchange. Existing members of other SROs that are also current members of BATS Exchange, Inc. will, for a short time prior to and immediately after the commencement of trading on the Exchange, be permitted to submit a short-form waive-in membership application form. Membership applications will be reviewed by the Exchange staff. Denials of membership by the staff may be appealed pursuant to the Adverse Action procedures set forth in Chapter X of the Exchange’s proposed Rules.

The Exchange may revoke the membership of a Member or an associated person whenever it has reason to believe that such Member fails to meet the membership qualification requirements of the Exchange.

Persons subject to suspension or termination with regard to access to the Exchange will be afforded an opportunity to be heard under Exchange Rules governing adverse actions. Persons applying for a hearing pursuant to these rules will be required to do so within 15 business days after being notified of such action. Applicants are permitted to submit any additional documents, statements, arguments or other materials in support of their application. Hearings will be held by the Appeals Committee, which will render its decision on the matter in writing. Decisions of the Appeals Committee will be subject to review by the Board of Directors of the Exchange either on its own motion or upon the written request of an applicant. The Board may affirm, reverse or modify, in whole or in part, the decision of the Appeals Committee.

A more detailed description of the Exchange’s Adverse Actions procedure is set forth in Chapter X of the Exchange’s proposed rules.

It is the Exchange’s intention to enter into a regulatory services agreement with another self-regulatory organization, such as the Financial Industry Regulatory Authority (“FINRA”), to conduct various regulatory services on behalf of the Exchange. In addition, it is the Exchange’s intention to file with the Commission a plan setting forth the allocation of certain regulatory responsibilities between itself and one or more other self-regulatory organizations pursuant to Rule 17d-2 of the Exchange Act.


Exhibit M

Exhibit Request:

Provide an alphabetical list of all members, participants, subscribers or other users, including the following information:

  1. Name,
     
  2. Date of election to membership or acceptance as a participant, subscriber or other user,
     
  3. Principal business address and telephone number,
     
  4. If member, participant, subscriber or other user is an individual, the name of the entity with which such individual is associated and the relationship of such individual to the entity (e.g., partner, officer, director, employee, etc.),
     
  5. Describe the type of activities primarily engaged in by the member, participant, subscriber, or other user (e.g., floor broker, specialist, odd lot dealer, other market maker, proprietary trader, non-broker dealer, inactive or other functions). A person shall be “primarily engaged” in an activity or function for purposes of this item when that activity or function is the one in which that person is engaged for the majority of their time. When more than one type of person at an entity engages in any of the six types of activities or functions enumerated in this item, identify each type (e.g., proprietary trader, Registered Competitive Trader and Registered Competitive Market Maker) and state the number of members, participants, subscribers, or other users in each, and
     
  6. The class of membership, participation or subscription or other access.

Response:

BATS Y-Exchange has not commenced operations and currently has no Members.


Exhibit N

Exhibit Request: Provide a schedule for each of the following:

Provide a schedule for each of the following:

  1. The securities listed in the exchange, indicating for each the name of the issuer and a description of the security;
     
  2. The securities admitted to unlisted trading privileges, indicating for each the name of the issuer and a description of the security;
     
  3. The unregistered securities admitted to trading on the exchange which are exempt from registration under Section 12(a) of the Act. For each security listed, provide the name of the issuer and a description of the security, and the statutory exemption claimed (e.g., Rule 12a-6); and
     
  4. Other securities traded on the exchange, including for each the name of the issuer and a description of the security.

Response:

BATS Y-Exchange has not commenced operations and, therefore, it has no securities that are listed or traded pursuant to unlisted trading privileges. As explained in Exhibit E, the Exchange will not list securities initially, though it may do so in the future.

Upon the effectiveness of its Form 1 Application for Registration as a National Securities Exchange, the Exchange intends to allow trading of Nasdaq National Market and Nasdaq Capital Market securities (both “Nasdaq securities” as defined in Rule 600(b)(41) of Regulation NMS) through BATS Y-Exchange. BATS Y-Exchange also plans to allow trading of exchange-traded securities, as defined in Rule 600(b)(25) of Regulation NMS, including exchange-traded funds or ETFs, through BATS Y-Exchange. All securities that BATS Y-Exchange will trade through the BATS Y-Exchange System are “NMS stocks”, as such term is defined in Rule 600(b)(47) of Regulation NMS, and will be, at least initially, admitted pursuant to unlisted trading privileges.

 

http://www.sec.gov/rules/other/2010/batsyapplication.htm

Modified: 01/25/2010