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•
a loss sharing pool related only to the financial market that
is contributed to by clearing members and only applies if
the defaulting member’s portfolio includes interest rate
swap products;
•
specific market default fund where the loss occurred (i.e.,
the financial, commodities, or seafood market), which
includes capital contributions of the clearing members on
a pro-rata basis;
•
senior capital contributed to each specific market by
Nasdaq Clearing, calculated in accordance with
clearinghouse rules, which totaled $49 million at
December 31, 2016; and
•
mutualized default fund, which includes capital
contributions of the clearing members on a pro-rata basis.
If additional funds are needed after utilization of the mutualized
default fund, then Nasdaq Clearing will utilize its power of
assessment and additional capital contributions will be required
by non-defaulting members up to the limits established under
the terms of the clearinghouse rules.
17. Leases
We lease some of our office space under non-cancelable
operating leases with third parties
and sublease office space to
third parties. Some of our lease agreements contain renewal
options and escalation clauses based on increases in property
taxes and building operating costs.
As of December 31, 2016, future minimum lease payments
under non-cancelable operating leases (net of sublease income)
are as follows:
Gross Lease
Commitments
Sublease
Income
Net Lease
Commitments
(in millions)
Year ending December 31:
2017
$
76 $
3 $
73
2018
73
3
70
2019
67
3
64
2020
57
3
54
2021
46
3
43
Thereafter
113
5
108
Total future
minimum lease
payments
$
432 $
20 $
412
Rent expense for operating leases (net of sublease income of
$4 million in 2016, $5 million in 2015 and $4 million in 2014)
was $78 million in 2016, $88 million in 2015 and $93 million
in 2014.
18. Commitments, Contingencies and Guarantees
Guarantees Issued and Credit Facilities Available
In addition to the default fund contributions and margin
collateral pledged by clearing members discussed in Note 16,
“Clearing Operations,” we have obtained financial guarantees
and credit facilities which are guaranteed by us through counter
indemnities, to provide further liquidity related to our clearing
businesses. Financial guarantees issued to us totaled $13 million
at December 31, 2016 and 2015. As discussed in “Other Credit
Facilities,” of Note 9, “Debt Obligations,” credit facilities,
which are available in multiple currencies, totaled $170 million
at December 31, 2016 and $202 million at December 31, 2015,
in available liquidity, none of which was utilized.
Execution Access is an introducing broker which operates the
trading platform for our Fixed Income business to trade in U.S.
Treasury securities. Execution Access has a clearing
arrangement with Cantor Fitzgerald. As of December 31, 2016,
we have contributed $20 million of clearing deposits to Cantor
Fitzgerald in connection with this clearing arrangement. These
deposits are recorded in other current assets in our Consolidated
Balance Sheets. Some of the trading activity in Execution
Access is cleared by Cantor Fitzgerald through the Fixed
Income Clearing Corporation. Execution Access assumes the
counterparty risk of clients that do not clear through the Fixed
Income Clearing Corporation. Counterparty risk of clients
exists for Execution Access between the trade date and the
settlement date of the individual transactions, which is one
business day. All of Execution Access’ obligations under the
clearing arrangement with Cantor Fitzgerald are guaranteed by
Nasdaq. Counterparties that do not clear through the Fixed
Income Clearing Corporation are
subject to a credit due
diligence process and may be required to post collateral, provide
principal letters, or provide other forms of credit enhancement
to Execution Access for the purpose of mitigating counterparty
risk.
We believe that the potential for us to be required to make
payments under these arrangements is mitigated through the
pledged collateral and our risk management policies.
Accordingly, no contingent liability is recorded in the
Consolidated Balance Sheets for these arrangements.
Lease Commitments
We lease some of our office space under non-cancelable
operating leases with third parties and sublease office space to
third parties. Some of our lease agreements contain renewal
options and escalation clauses based on increases in property
taxes and building operating costs.
Other Guarantees
We have provided other guarantees of $3 million as of
December 31, 2016 and $11 million at December 31, 2015.
These guarantees are primarily related to obligations for our
rental and leasing contracts as well as performance guarantees
on certain market technology contracts related to the delivery
of software technology and support services. We have received
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financial guarantees from various financial institutions to
support the above guarantees.
Through our clearing operations in the financial markets,
Nasdaq Clearing is the legal counterparty for, and guarantees
the performance of, its clearing members. See Note 16,
“Clearing Operations,” for further discussion of Nasdaq
Clearing performance guarantees.
We have provided a guarantee related to lease obligations for
The Nasdaq Entrepreneurial Center, Inc. which is a not-for-
profit organization designed to convene, connect and engage
aspiring and current entrepreneurs. This entity is not included
in the consolidated financial statements of Nasdaq.
We believe that the potential for us to be required to make
payments under these arrangements is unlikely. Accordingly,
no contingent liability is recorded in the Consolidated Balance
Sheets for the above guarantees.
Non-Cash Contingent Consideration
As part of the purchase price consideration of a prior
acquisition, we have agreed to future annual issuances of
992,247 shares of Nasdaq common stock which approximated
certain tax benefits associated with the transaction. Such
contingent future issuances of Nasdaq common stock will be
paid ratably through 2027 if Nasdaq’s total gross revenues equal
or exceed $25 million in each such year. The contingent future
issuances of Nasdaq common stock are subject to anti-dilution
protections and acceleration upon certain events.
Escrow Agreements
In connection with prior acquisitions, we entered into escrow
agreements to secure the payment of post-closing adjustments
and to ensure other closing conditions. At December 31, 2016,
these escrow agreements provide for future payment of $31
million and are included in other current liabilities in the
Consolidated Balance Sheets.
Routing Brokerage Activities
One of our broker-dealer subsidiaries, Nasdaq Execution
Services, provides a guarantee to securities clearinghouses and
exchanges under its standard membership agreements, which
require members to guarantee the performance of other
members. If a member becomes unable to satisfy its obligations
to a clearinghouse or exchange, other members would be
required to meet its shortfalls. To mitigate these performance
risks, the exchanges and clearinghouses often require members
to post collateral, as well as meet certain minimum financial
standards. Nasdaq Execution Services’ maximum potential
liability under these arrangements cannot be quantified.
However, we believe that the potential for Nasdaq Execution
Services to be required to make payments under these
arrangements is unlikely. Accordingly, no contingent liability
is recorded in the Consolidated Balance Sheets for these
arrangements.
Litigation
As previously disclosed, we became a party to several legal and
regulatory proceedings in 2012 and 2013 relating to the
Facebook, Inc. IPO that occurred on May 18, 2012. As
described in our Annual Report on Form 10-K for the year ended
December 31, 2012, we were named as a defendant in a
consolidated matter captioned In re Facebook, Inc., IPO
Securities and Derivative Litigation, MDL No. 2389
(S.D.N.Y.). On December 27, 2016, the court of appeals
affirmed the judgment of the district court approving the
settlement the parties had reached in 2015.
As previously disclosed, we were named as a defendant in a
putative class action, Rabin v. NASDAQ OMX PHLX LLC, et
al., No. 15-551 (E.D. Pa.), filed in 2015 in the United States
District Court for the Eastern District of Pennsylvania. On April
21, 2016, the court entered an order granting our motion to
dismiss the complaint. The plaintiff appealed the dismissal to
the Court of Appeals for the Third Circuit on May 18,
2016. Given that the complaint was dismissed at the
preliminary stage of the proceeding, we are unable to estimate
what, if any, liability may result from this litigation. However,
we believe (as the district court concluded) that the claims are
without merit, and we intend to defend the dismissal on appeal
vigorously.
We also are named as one of many defendants in City of
Providence v. BATS Global Markets, Inc., et al., 14 Civ. 2811
(S.D.N.Y.), which was filed on April 18, 2014 in the United
States District Court for the Southern District of New York. The
district court appointed lead counsel, who filed an amended
complaint on September 2, 2014. The amended complaint
names as defendants seven national exchanges, as well as
Barclays PLC, which operated a private alternative trading
system. On behalf of a putative class of securities traders, the
plaintiffs allege that the defendants engaged in a scheme to
manipulate the markets through high-frequency trading; the
amended complaint asserts claims against us under Section 10
(b) of the Exchange Act and Rule 10b-5, as well as under Section
6(b) of the Exchange Act. We filed a motion to dismiss the
amended complaint on November 3, 2014. In response, the
plaintiffs filed a second amended complaint on November 24,
2014, which names the same defendants and alleges essentially
the same violations. We then filed a motion to dismiss the
second amended complaint on January 23, 2015. On August
26, 2015, the district court entered an order dismissing the
second amended complaint in its entirety with prejudice,
concluding that most of the plaintiffs’ theories were foreclosed
by absolute immunity and in any event that the plaintiffs failed
to state any claim. The plaintiffs have appealed the judgment
of dismissal to the United States Court of Appeals for the Second
Circuit. The Second Circuit heard oral argument on August 24,
2016. On August 25, 2016, the Second Circuit issued an order
requesting the SEC’s views on whether the district court had
subject-matter jurisdiction over the case, and whether the
defendants are immune from suit regarding the challenged
conduct. The SEC filed its brief on November 28, 2016. The
exchanges and plaintiffs filed supplemental briefs responding
to the SEC’s brief on December 12, 2016. Given the preliminary