[Federal Register Volume 84, Number 197 (Thursday, October 10, 2019)]
[Notices]
[Pages 54655-54659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22141]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-87231; File No. SR-GEMX-2019-14]
Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Amend GEMX's
Rulebook and By-Laws
October 4, 2019.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
[[Page 54656]]
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on September 23, 2019, Nasdaq GEMX, LLC (``GEMX'' or ``Exchange'')
filed with the Securities and Exchange Commission (``SEC'' or
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been prepared by the Exchange. 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 Exchange proposes to amend its Rulebook and By-Laws to (i)
remove obsolete provisions relating to the organization and
administration of committees, (ii) modify Director categorizations,
(iii) amend the compositional requirements of the Exchange's board
(``Board'') and Regulatory Oversight Committee (``ROC''), and (iv) make
additional, non-substantive edits.
The text of the proposed rule change is available on the Exchange's
website at http://nasdaqgemx.cchwallstreet.com/, at the principal
office of the Exchange, and at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Exchange 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 Exchange 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
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to amend its Rulebook and By-Laws to (i)
remove obsolete provisions relating to the organization and
administration of committees, (ii) modify Director categorizations,
(iii) amend the Board and ROC compositional requirements, and (iv) make
additional, non-substantive edits. Each change is discussed below.\3\
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\3\ All references herein and in the Exhibit 5 to ``the
Company'' mean the Exchange. Company is defined in the By-Laws to
mean Nasdaq GEMX, LLC.
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Rules 200-203
Chapter 2 of the Exchange's Rulebook presently contains a number of
rules relating to the organization and administration of committees of
the Exchange. In particular, Rules 200-203 set forth provisions for the
establishment of committees, removal of committee members, committee
procedures and the general duties and powers of committees, all of
which have been in place since the Exchange's inception. The Exchange
has since amended its committee structure and related rules to align
with those of its affiliates.\4\ Accordingly, the Exchange proposes to
delete Rules 200-203 as obsolete or duplicative because the provisions
related to the organization and administration of committees are now
set forth in the Exchange's Limited Liability Company Agreement (``LLC
Agreement'') and its By-Laws.
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\4\ See Securities Exchange Act Release No. 81802 (October 3,
2017), 82 FR 47055 (October 10, 2017) (SR-GEMX-2017-37)
(establishing, among other changes, a Board and committee structure
substantially similar to The Nasdaq Stock Market LLC's structure);
and Securities Exchange Act Release No. 83704 (July 25, 2018), 83 FR
37012 (July 31, 2018) (SR-GEMX-2018-24) (establishing, among other
changes, an Exchange Review Council substantially similar to
Exchange Review Council of Nasdaq BX, Inc. to replace the Business
Conduct Committee). As a result of these changes, Exchange's board
and committee structure is generally harmonized with its affiliates,
Nasdaq BX, Inc. (``BX''), The Nasdaq Stock Market LLC (``Nasdaq''),
and Nasdaq PHLX LLC (``Phlx'').
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Historically, Rules 200 and 201 authorized the Chief Executive
Officer and President of the Exchange to establish committees not
comprised of directors pursuant to delegated authority by the Board,
and to appoint or remove any such committee members with Board
approval.\5\ With the changes in SR-GEMX-2017-37 and SR-GEMX-2018-24,
these rules have been superseded by By-Law provisions that specify the
committees composed solely of Directors and committees not composed
solely of Directors, including the appointment and removal of such
committee members.\6\ In this respect, the Exchange notes that it is
following the approach of its affiliates, BX, Nasdaq, and Phlx, which
similarly have provisions in their respective By-Laws, instead of their
rulebooks, pertaining to committees composed solely of Directors and
committees not composed solely of Directors.\7\ The Exchange further
seeks to delete Rules 202 and 203 given that similar provisions
governing committee procedures and general duties and powers are now
set forth in Section 9(g) of the LLC Agreement and in By-Law Article
III and Article VI.
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\5\ For example, the Exchange's former Business Conduct
Committee (``BCC'') was established by the Chief Executive Officer
and President pursuant to delegated authority. As noted above, the
BCC was recently replaced by the Exchange Review Council in SR-GEMX-
2018-24. See Securities Exchange Act Release No. 83704 (July 25,
2018), 83 FR 37012 (July 31, 2018) (SR-GEMX-2018-24).
\6\ See By-Law Article III, Sections 4-6. In addition, the
provisions governing the Exchange Review Council are specified in
By-Law, Article VI.
\7\ See BX By-Law Article IV, Sections 4.12-4.14 and Article
VII; Nasdaq By-Law Article III, Sections 4-6 and Article VI; and
Phlx By-Law Article V.
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By-Law Article I
Currently, the definition of ``Non-Industry Director'' in the
Exchange By-Laws refers to, among other individuals, an officer,
director, or employee of an issuer of securities listed on the national
securities exchange operated by the Exchange.\8\ Because only Nasdaq
currently operates an equities listing market, the Exchange seeks to
amend the definition of Non-Industry Director to refer to an officer,
director, or employee of an issuer of securities listed on a national
securities exchange operated by the Exchange or one of its affiliates.
The Exchange believes that the proposed changes will bring greater
clarity to the Exchange's rules by aligning the By-Law provision to how
the Exchange currently operates. The Exchange notes that the
qualifications for a Non-Industry Director are not expanding under this
proposal and as a practical matter, no changes to the current
composition of Non-Industry Directors on the Exchange's Board are
contemplated by this rule change. Today, a Non-Industry Director who is
not designated by the Exchange as a Public Director \9\ under (i) of
the definition of Non-Industry Director, and that does not explicitly
fall under (ii) (i.e., ``an officer, director or employee of an issuer
of securities listed on the national securities exchange operated by
the Exchange'') would still fall under (iii) an individual who would
not be an Industry Director.\10\ With the proposed
[[Page 54657]]
changes, these Non-Industry Directors could fall under both (ii) and
(iii) because they would be representative of issuers listed on the
Exchange's affiliate, Nasdaq, and at the same time, not be considered
Industry Directors. The Exchange also proposes to make conforming
changes to the definition of a ``Non-Industry member'' of a
committee.\11\
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\8\ In addition, the term ``Non-Industry Director'' encompasses
a Director (excluding Staff Directors) who is a Public Director or
any other individual who would not be an Industry Director. See By-
Law Article I, Section (w).
\9\ The term ``Public Director'' means a Director who has no
material business relationship with a broker or dealer, the Company
or its affiliates, or FINRA. See By-Law Article I, Section (z).
\10\ The term ``Industry Director'' means a Director (excluding
any two officers of the Company, selected at the sole discretion of
the Board, amongst those officers who may be serving as Directors
(the ``Staff Directors'')), who (i) is or has served in the prior
three years as an officer, director, or employee of a broker or
dealer, excluding an outside director or a director not engaged in
the day-to-day management of a broker or dealer; (ii) is an officer,
director (excluding an outside director), or employee of an entity
that owns more than ten percent of the equity of a broker or dealer,
and the broker or dealer accounts for more than five percent of the
gross revenues received by the consolidated entity; (iii) owns more
than five percent of the equity securities of any broker or dealer,
whose investments in brokers or dealers exceed ten percent of his or
her net worth, or whose ownership interest otherwise permits him or
her to be engaged in the day-to-day management of a broker or
dealer; (iv) provides professional services to brokers or dealers,
and such services constitute 20 percent or more of the professional
revenues received by the Director or 20 percent or more of the gross
revenues received by the Director's firm or partnership; (v)
provides professional services to a director, officer, or employee
of a broker, dealer, or corporation that owns 50 percent or more of
the voting stock of a broker or dealer, and such services relate to
the director's, officer's, or employee's professional capacity and
constitute 20 percent or more of the professional revenues received
by the Director or member or 20 percent or more of the gross
revenues received by the Director's or member's firm or partnership;
or (vi) has a consulting or employment relationship with or provides
professional services to the Company or any affiliate thereof or to
FINRA (or any predecessor) or has had any such relationship or
provided any such services at any time within the prior three years.
See By-Law Article I, Section (m).
\11\ See By-Law Article I, Section (x).
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Currently, the Exchange's Board compositional requirements require
at least one Public Director and at least one issuer representative (or
if the Board consists of ten or more Directors, at least two issuer
representatives).\12\ As set forth in Article I, Section (z), a
``Public Director'' is defined as a Director who has no material
business relationship with a broker or dealer, the Exchange or its
affiliates, or FINRA. ``Issuer representative'' is not defined
specifically in the Exchange's By-Laws, but is implicitly defined in
the term Non-Industry Director as ``an officer, director, or employee
or an issuer of securities listed on the national securities exchange
operated by the Exchange.'' \13\ The Exchange now proposes to clarify
in the definition of Public Director that, for the avoidance of doubt,
a director of an issuer of securities listed on a national securities
exchange operated by the Exchange or one of its affiliates shall not be
precluded from being considered a Public Director solely on the basis
of such directorship. The Exchange believes that a director of a listed
company can adequately represent the interests of listed companies on
the Board and therefore be considered an issuer representative. At the
same time, the Exchange does not believe that such a directorship
always constitutes a material business relationship with a broker or
dealer, the Exchange or its affiliates, or FINRA, which would prohibit
the individual from being considered a Public Director.\14\ Of course,
such issuer representative must still meet the requirements of a Public
Director and not have such material business relationships by
definition. Thus in limited circumstances, the Exchange believes that
it is possible for directors of listed companies to be considered both
Public Directors and issuer representatives. In light of the foregoing,
the Exchange also proposes to make conforming changes to the definition
of a ``Public member'' of a committee.\15\
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\12\ See By-Law Article III, Section 2(a).
\13\ See By-Law Article I, Section (w). As discussed above, the
Exchange will amend this provision to refer to ``an officer,
director, or employee of an issuer of securities listed on a
national securities exchange operated by the Exchange or one of its
affiliates.''
\14\ This is consistent with the longstanding best practice of
the Exchange's ultimate parent, Nasdaq, Inc., having the Chairman of
the Audit Committee of the board of directors of Nasdaq, Inc. serve
as the Chairman of the Exchange Board's Regulatory Oversight
Committee, which is required to be comprised of Public Directors who
are also considered ``independent directors'' as defined in Nasdaq
Rule 5605. See By-Law Article III, Section 5(c). Because Nasdaq,
Inc. is a listed company, this Exchange Director could be considered
both an issuer representative and a Public Director.
\15\ See By-Law Article I, Section (aa).
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The Exchange notes that with the proposed changes, the composition
of the Board would still be required to reflect a balance among Non-
Industry Directors (including Public Directors and issuer
representatives), Industry Directors, and Member Representative
Directors.\16\ Accordingly, current Board qualification requirements
such as the number of Non-Industry Directors equaling or exceeding the
sum of the number of Industry Directors and Member Representative
Directors would continue to apply.\17\
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\16\ The term ``Member Representative Director'' means a
Director who has been elected or appointed after having been
nominated by the Member Nominating Committee or by an Exchange
Member pursuant to the Exchange's By-Laws. A Member Representative
Director may, but is not required to be, an officer, director,
employee, or agent of an Exchange Member. See By-Law Article I,
Section (r). Member Representative Directors are directors that meet
the fair representation requirement in Section 6(b)(3) of the Act,
which requires that the ``rules of the Exchange assure a fair
representation of its members in the selection of its directors and
administration of its affairs . . .''
\17\ See By-Law Article III, Section 2(a). In addition, the
Board qualification requirement that at least 20% of the Directors
be Member Representative Directors will continue to apply. See LLC
Agreement Section 9(a).
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By-Law Article III, Section 2(a)
The Exchange proposes to amend By-Law Article III, Section 2(a) to
revise the qualifications for any position on the Board required to be
representative of issuers. As discussed above, Article III, Section
2(a) requires that the Board be composed of at least one Public
Director and at least one issuer representative (or if the Board
consists of ten or more Directors, at least two issuer
representatives).\18\ The Exchange adopted this provision when it
conformed its By-Laws to those of Nasdaq as part of its effort to
harmonize corporate governance processes with its affiliated
exchanges.\19\ As noted above, unlike Nasdaq, the Exchange does not
currently operate an equities listing market and therefore believes it
is more appropriate to align its Board composition requirements on this
point with the By-Laws of BX and Phlx, which both currently require
only one Director representative of issuers and investors, regardless
of Board size.\20\ The Exchange's proposal would also change the Board
composition requirement to more closely track the statutory language
included in Section 6(b)(3) of the Act, which requires one or more
directors to be ``representative of issuers and investors.''
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\18\ By-Law Article III, Section 2(a) also requires that the
number of Non-Industry Directors (which includes Public Directors
and issuer representatives) shall equal or exceed the sum of the
number of Industry Directors and Member Representative Directors.
Furthermore, Section 9(a) of the LLC Agreement requires that at
least 20% of the Directors be Member Representative Directors. These
Board qualifications are not being amended.
\19\ See Securities Exchange Act Release No. 81802 (October 3,
2017), 82 FR 47055 (October 10, 2017) (SR-GEMX-2017-37).
\20\ See BX By-Law Article IV, Section 4.3; and Phlx By-Law
Article III, Section 3-2(a). Similar to the Exchange, BX and Phlx do
not currently operate equities listing markets.
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By-Law Article III, Section 5(c)
Currently, By-Law Article III, Section 5(c) requires that the
Regulatory Oversight Committee (``ROC'') be comprised of three members,
each of whom shall be a Public Director and an ``independent director''
as defined in Nasdaq Rule 5605. The Exchange proposes to amend Section
5(c) to provide that the ROC shall be comprised of at least three
members, as is currently set forth in the ROC Charter.\21\ All members
of the ROC will continue to be Public Directors and ``independent
directors'' as defined in Nasdaq Rule
[[Page 54658]]
5605. Lastly, the Exchange also proposes to make technical changes in
Section 5(c) to correct a typographical error and to update Nasdaq's
name.
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\21\ The ROC Charter is available at: http://ir.nasdaq.com/static-files/ad0a0102-e977-40cf-8139-15c359576a25.
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2. Statutory Basis
The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\22\ in general, and furthers the objectives of Section
6(b)(1), Section 6(b)(3), and Section 6(b)(5) of the Act,\23\ in
particular, which require, among other things, an exchange to be so
organized as to have the capacity to be able to carry out the purposes
of the Act; that one or more directors be representative of issuers and
investors and not be associated with a member of the exchange, broker,
or dealer; and that the rules of an exchange be designed to promote
just and equitable principles of trade, 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.
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\22\ 15 U.S.C. 78f(b).
\23\ 15 U.S.C. 78f(b)(1), (b)(3), and (b)(5).
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Rules 200-203
As discussed above, the Exchange proposes to delete Rules 200-203
as obsolete or duplicative because the provisions related to the
organization and administration of committees are now set forth in the
Exchange's LLC Agreement and By-Laws. The Exchange believes that
deleting rules that no longer apply to the Exchange's current committee
structure will more clearly identify currently applicable rules, which
will remove impediments to and perfect the mechanism of a free and open
market. The Exchange further believes that the proposed rule change
will eliminate potential confusion regarding which rules apply to the
organization and administration of committees, which ultimately
protects investors and the public interest.
By-Law Article I
The Exchange believes that the changes to the definitions of Non-
Industry Director and Non-Industry member proposed above will enhance
the clarity of these provisions given that only the Exchange's
affiliate (Nasdaq) currently operates an equities listing market.
Accordingly, the proposed changes should more accurately reflect how
the Exchange currently operates. The Exchange also believes that the
proposed changes to the definitions of Public Director and Public
member are consistent with the Act as these modifications are intended
to make clear that a Director is not barred from being considered a
Public Director merely because the Director serves as a director of an
issuer of securities listed on a national securities exchange operated
by the Exchange or one of its affiliates, and are consistent with
current corporate governance practices.\24\ Furthermore, as discussed
above, the requirements that the number of Non-Industry Directors
(including at least one Public Director and at least one Director
representative of issuers and investors) equal or exceed the sum of the
number of Industry Directors and Member Representative Directors, and
at least 20% of the Directors be Member Representative Directors, would
continue to apply.\25\ Accordingly, the Exchange believes that the
proposed changes will more accurately reflect the Exchange's current
operations and governance practices while continuing to comport with
the Exchange's statutory obligations regarding fair representation
under Section 6(b)(3) of the Act.
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\24\ See supra note 14.
\25\ See supra notes 16 and 17, with accompanying text.
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By-Law Article III, Section 2(a)
The Exchange believes that its proposal to expand the Board
qualifications from an issuer representative to a representative of
issuers and investors, and eliminate the requirement that the Board
have two such representatives if the Board consists of ten or more
Directors is consistent with the Act. The Exchange notes that the
proposed changes track the statutory language included in Section
6(b)(3) of the Act, which requires one or more directors to be
``representative of issuers and investors.'' The Exchange also notes
that the elimination of the requirement to have at least two Director
positions representative of issuers if the Board consists of ten or
more Directors is consistent with Section 6(b)(3) of the Act, which
only requires the Board to have one such representative. Furthermore,
the Exchange will continue to require the Board composition to reflect
a balance among Non-Industry Directors (including Public Directors and
Director representatives of issuers and investors), Industry Directors,
and Member Representative Directors (with the latter continuing to
constitute 20% of the Board).\26\ Accordingly, the Exchange believes
that the changes to the Board qualifications proposed herein will more
accurately reflect current Exchange operations while continuing to meet
the statutory requirements under Section 6(b)(3) of the Act. In
addition, the proposed amendments will have the additional benefit of
bringing the Exchange's Board qualifications on this point into greater
conformity with those of BX and Phlx, thereby creating more consistent
standards among the affiliated exchanges owned by Nasdaq, Inc.\27\
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\26\ See supra note 18.
\27\ See supra note 20.
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By-Law Article III, Section 5(c)
The Exchange believes that the proposed rule change in By-Law
Article III, Section 5(c) to provide that the ROC shall be comprised of
at least three members is consistent with the Act because it will
promote transparency to the Exchange's current practices by conforming
the By-Law language to the ROC Charter. As discussed above, the
composition requirements that all ROC members be Public Directors and
``independent directors'' as defined in Nasdaq Rule 5605 will remain
unchanged with this proposal, thereby ensuring that an independent
Board committee will continue to be responsible for the regulatory
oversight of the Exchange. Lastly, the proposed technical changes in
Section 5(c) to correct a typographical error and to update Nasdaq's
name will bring greater clarity to the Exchange's rules, which protects
investors and the public interest.
B. Self-Regulatory Organization's Statement on Burden on Competition
Because the proposed rule change relates to the corporate
governance of the Exchange and not to the Exchange's operations, 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
No written comments were either solicited or received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative 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
[[Page 54659]]
19(b)(3)(A) of the Act \28\ and subparagraph (f)(6) of Rule 19b-4
thereunder.\29\
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\28\ 15 U.S.C. 78s(b)(3)(A).
\29\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
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A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \30\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \31\ permits the
Commission to designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has requested that the Commission waive the 30-day operative delay. The
Commission notes that waiver of the operative delay would allow the
Exchange to effect the changes to its Rulebook and By-Laws, which would
eliminate obsolete provisions in the Exchange's Rulebook and better
align provisions in the Exchange's By-Laws with those in the By-Laws of
its affiliates, in time for the Exchange Board meeting on September 25,
2019. The Commission believes that waiver of the 30-day operative delay
is consistent with the protection of investors and the public interest.
Accordingly, the Commission hereby waives the operative delay and
designates the proposed rule change operative upon filing.\32\
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\30\ 17 CFR 240.19b-4(f)(6).
\31\ 17 CFR 240.19b-4(f)(6)(iii).
\32\ For purposes only of waiving the 30-day operative delay,
the Commission also has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule change should be approved or
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 email to [email protected]. Please include
File Number SR-GEMX-2019-14 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-GEMX-2019-14. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (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 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-GEMX-2019-14 and should be submitted on
or before October 31, 2019.
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\33\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\33\
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-22141 Filed 10-9-19; 8:45 am]
BILLING CODE 8011-01-P