[Federal Register Volume 76, Number 37 (Thursday, February 24, 2011)]
[Notices]
[Pages 10418-10420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4117]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-63925; File No. SR-NASDAQ-2011-025]


Self-Regulatory Organizations; NASDAQ Stock Market, LLC; Notice 
of Filing of Proposed Rule Change To Amend The NASDAQ OMX Group, Inc. 
By-Laws

February 17, 2011.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 \2\ thereunder, notice is hereby given 
that on February 8, 2011, The NASDAQ Stock Market LLC (``NASDAQ'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I, II and III below, which Items have been prepared by the 
NASDAQ. The Commission is publishing this notice to solicit comments on 
the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The NASDAQ Stock Market LLC proposes to amend the By-Laws of its 
parent corporation, The NASDAQ OMX Group, Inc. (``NASDAQ OMX'').
    The text of the proposed rule change is available on the Exchange's 
Web site at http://www.nasdaq.cchwallstreet.com, at the principal 
office of the Exchange, on the Commission's Web site at http://www.sec.gov, 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 Exchange included statements 
concerning the purpose of and basis for the proposed rule change. The 
text of these 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,

[[Page 10419]]

of the most significant aspects of such statements.

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

1. Purpose
    NASDAQ OMX is proposing to make certain clarifying amendments to 
its By-Laws. Specifically, NASDAQ OMX is proposing to amend: (i) The 
name of the Nominating Committee to the ``Nominating & Governance 
Committee''; (ii) a NASDAQ OMX PHLX, Inc. reference to reflect a recent 
conversion to a limited liability company; and (iii) By-Law Article IV, 
Section 4.4 to clarify that broker nonvotes are not counted as a vote 
cast either ``for'' or ``against'' a Director.
    Currently, NASDAQ OMX By-Laws provide for a Nominating Committee 
which Committee is appointed pursuant to the By-Laws. The Exchange is 
proposing to name this Committee the ``Nominating & Governance 
Committee.'' The Exchange proposes to amend the By-Laws to change all 
references to ``Nominating Committee'' to state ``Nominating & 
Governance Committee.'' The Exchange is proposing to rename the 
Nominating Committee in order that all of its current functions are 
reflected in the title of the committee. The current functions of the 
Nominating Committee encompass certain functions that are deemed 
governance functions.
    By way of example, and in addition to the responsibilities listed 
in By-Law Article IV, Section 4.13(h), the Nominating Committee 
consults with the Board and the management of the Company to determine 
the characteristics, skills and experience desired for the Board as a 
whole and for its individual members, with the objective of having a 
Board that reflects diverse backgrounds. The Non-Executive Chairman of 
the Board and the Nominating Committee is also responsible for 
overseeing the annual director evaluation. As part of the annual 
process of determining director representation on the corporate 
committees, the Non-Executive Chairman solicits input from each 
committee chair and Board members on the effectiveness of the 
committee, the committee chair and the individual Board member. The 
Nominating Committee receives the results and reviews the overall 
effectiveness of the Board.
    This proposed amendment to rename the Nominating Committee does not 
change the function of this committee. This proposal is merely to 
clarify the current function of this committee and its governance role 
with respect to the Board selection process.
    Second, NASDAQ OMX PHLX, Inc. recently filed a rule change to 
convert NASDAQ OMX PHLX from a Delaware corporation to a Delaware 
limited liability company agreement.\3\ At this time NASDAQ OMX 
proposes to amend the definitions at Article 1, specifically section 
(o) to change the reference to ``NASDAQ OMX PHLX, Inc.'' to ``NASDAQ 
OMX PHLX LLC.'' This amendment is not substantive and merely seeks to 
correct the name of a NASDAQ OMX subsidiary.
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    \3\ See Securities Exchange Act Release No. 62783 (August 27, 
2010), 75 FR 54204 (September 3, 2010) (SR-Phlx-2010-104).
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    Finally, NASDAQ OMX proposes to add the words ``and broker 
nonvotes'' to By-Law Article IV, Section 4-4 [sic] to clarify that 
broker nonvotes are not counted as a vote cast either ``for'' or 
``against'' that Director's election.
    In 2009, New York Stock Exchange LLC (``NYSE'') Rule 452 was 
amended to eliminate broker discretionary voting for the election of 
Directors with one exception.\4\ Previously, NYSE Rule 452 permitted 
brokers to vote without voting instructions from the beneficial owner 
\5\ on uncontested elections of directors. The rule change requires 
instructions from the beneficial owner to give a proxy to vote for a 
director with an exception for companies registered under the 
Investment Company Act of 1940.\6\ Therefore, when brokers do not have 
discretion to vote uninstructed shares on a particular proposal, the 
stockholder's failure to instruct the broker will result in a ``broker 
nonvote.''
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    \4\ See Securities Exchange Act Release No. 60215 (July 1, 
2009), 74 FR 33293 (July 10, 2009) (SR-NYSE-2006-92) (a rule change 
to eliminate broker discretionary voting for all elections of 
directors at shareholder meetings held on or after January 1, 2010, 
whether contested or not, except for companies registered under the 
1940 Act).
    \5\ A shareholder of a public company may hold shares either 
directly, as the record holder, or indirectly, as the beneficial 
holder, with the shares held in the name of the beneficial 
shareholder's broker-dealer, bank nominee, or custodian 
(``securities intermediary''), which is the record holder. The 
latter generally is referred to as holding securities in ``street 
name.'' Securities intermediaries, on behalf of beneficial owners, 
hold a substantial majority of exchange securities.
    \6\ See NYSE Rule 452.10(3) [sic]. The Commission notes that the 
correct reference is NYSE Rule 452.11(19).
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    Under Delaware case law, broker non-votes are not considered as 
votes cast for or against a proposal or director nominee.\7\ In its 
election of directors, NASDAQ OMX is proposing to clarify its current 
practice of not counting a broker nonvote as a vote cast either for or 
against a director's election. In 2010, NASDAQ OMX amended its By-Laws 
to state that in an uncontested election, a majority voting standard 
would apply to the election of its directors.\8\ This requires 
directors to be elected by the holders of a majority of the votes cast 
at any meeting for the election of directors at which a quorum is 
present in an uncontested election. A plurality standard still remains 
in a contested election. The practice of not counting a broker nonvote 
as a vote cast either for or against a director's election remains 
unchanged by the amendment to a majority vote standard. The Exchange is 
proposing to retain its current practice and codify such practice in 
its By-Laws at Article IV, Section 4.4. This Section 4.4 currently 
specifies that abstentions \9\ are similarly not counted as a vote cast 
either for or against the director's election.\10\
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    \7\ See Berlin v. Emerald Partners, Del Supr. 552 A.2d 482 
(1988).
    \8\ See Securities Exchange Act Release No. 61876 (April 8, 
2010), 75 FR 19436 (April 8, 2010) [sic] (SR-NASDAQ-2010-025).
    \9\ An abstention is the voluntary act of not voting by a 
stockholder who is present at a meeting and entitled to vote.
    \10\ In either a majority or plurality election, broker non-
votes and abstentions are considered for purposes of establishing a 
quorum. A quorum is a majority of the shares entitled to vote, 
present in person or by proxy.
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    This proposal is non-substantive and merely clarifies the existing 
practice of counting broker non votes [sic]. The Exchange believes that 
this additional language to Article IV, Section 4.4 will assist 
shareholders in understanding the manor [sic] in which directors are 
elected pursuant to NASDAQ OMX's By-Laws.
2. Statutory Basis
    The NASDAQ Exchange believes that the proposed rule change is 
consistent with the provisions of Section 6 of the Act,\11\ in general, 
and with Sections 6(b)(5) of the Act,\12\ in particular, in that the 
proposal enables the NASDAQ Exchange to be so organized as to have the 
capacity to be able to carry out the purposes of the Act and to comply 
with and enforce compliance by members and persons associated with 
members with provisions of the Act, the rules and regulations 
thereunder, and self-regulatory organization rules, and is designed to 
prevent fraudulent and manipulative acts and practices, to promote just 
and equitable principles of trade, to foster cooperation and 
coordination with persons engaged in regulating, clearing, settling, 
processing information with respect to, and facilitating transactions 
in securities, to remove impediments to and perfect the

[[Page 10420]]

mechanism of a free and open market and a national market system, and, 
in general, to protect investors and the public interest.
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    \11\ 15 U.S.C. 78f.
    \12\ 15 U.S.C. 78f(b)(2), [sic] (5).
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    The Exchange believes that the proposed amendments are clarifying 
amendments or are non-substantive. The proposals would provide the 
proper Committee and entity names, with respect to the proposals to 
change the Nominating Committee and NASDAQ OMX PHLX names, and in the 
case of the broker nonvote proposal, would provide additional 
information to shareholders. The Exchange believes that these proposed 
amendments protect investors and the public interest, including NASDAQ 
OMX shareholders, in that the proposed changes would serve to clarify 
NASDAQ OMX's By-Laws and processes for its annual election.

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

    The Exchange does not believe that the proposed rule change will 
result in 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

    No written comments were either solicited or received.

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission shall: 
(a) By order approve or disapprove such proposed rule change, or (b) 
institute proceedings to determine whether the proposed rule change 
should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change 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 e-mail to [email protected]. Please include 
File Number SR-NASDAQ-2011-025 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-NASDAQ-2011-025. This 
file number should be included on the subject line if e-mail 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 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 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 
available publicly. All submissions should refer to File No. SR-NASDAQ-
2011-025 and should be submitted on or before March 17, 2011.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(12).
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Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-4117 Filed 2-23-11; 8:45 am]
BILLING CODE 8011-01-P