Self-Regulatory Organizations; Notice of Filing of Proposed Rule Change by New York Stock Exchange LLC To Amend the Bylaws of NYSE Euronext To Adopt a Majority Voting Standard in Uncontested Elections of Directors, 13170-13172 [2010-5916]
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13170
Federal Register / Vol. 75, No. 52 / Thursday, March 18, 2010 / Notices
proposed rule change is not inconsistent
with OCC’s By-Laws and Rules.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
OCC does not believe that the
proposed rule change would impose any
burden on competition.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants or Others
OCC has not solicited or received
written comments relating to the
proposed rule change. OCC will notify
the Commission of any written
comments it receives.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within thirty-five 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
ninety 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
will:
(A) By order approve the 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 (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
No. SR–OCC–2010–03 on the subject
line.
sroberts on DSKD5P82C1PROD with NOTICES
Paper Comments
• Send paper comments in triplicate
to Elizabeth M. Murphy, Secretary,
Securities and Exchange Commission,
Station Place, 100 F Street, NE.,
Washington, DC, 20549–1090.
All submissions should refer to File No.
SR–OCC–2010–03. 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
VerDate Nov<24>2008
17:08 Mar 17, 2010
Jkt 220001
post all comments on the Commission’s
Internet Web site (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C 552, will be
available for Web site viewing and
printing in the Commission’s Public
Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official
business days between the hours of 10
a.m. and 3 p.m. Copies of such filing
also will be available for inspection and
copying at OCC’s principal office and on
OCC’s Web site at https://
www.theocc.com/publications/rules/
proposed_changes/
proposed_changes.jspU>. 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 submission
should refer to File No. SR–OCC–2010–
03 and should be submitted on or before
April 8, 2010.
For the Commission by the Division of
Trading and Markets, pursuant to delegated
authority.7
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010–5914 Filed 3–17–10; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–61694; File No. SR–NYSE–
2010–18]
Self-Regulatory Organizations; Notice
of Filing of Proposed Rule Change by
New York Stock Exchange LLC To
Amend the Bylaws of NYSE Euronext
To Adopt a Majority Voting Standard in
Uncontested Elections of Directors
March 11, 2010.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on March 5,
2010, New York Stock Exchange LLC
(‘‘NYSE’’ or the ‘‘Exchange’’) filed with
the Securities and Exchange
Commission (‘‘Commission’’) the
7 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
Frm 00099
Fmt 4703
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange is submitting this rule
filing in connection with the proposal of
its ultimate parent, NYSE Euronext (the
‘‘Corporation’’),3 to amend its bylaws
(‘‘Bylaws’’) to replace the plurality vote
standard for election of directors in
uncontested elections that is currently
in the Bylaws with a majority vote
standard for such elections. The existing
plurality vote standard will be retained
in connection with contested elections
for directors. The text of the proposed
rule change is available at the Exchange,
at the Commission’s Public Reference
Room, and on the Exchange’s Web site
at https://www.nyse.com.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
self-regulatory organization included
statements concerning the purpose of
and basis for the proposed rule change
and discussed any comments it received
on the proposed rule change. The text
of these statements may be examined at
the places specified in Item IV below.
The 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 is submitting this rule
filing in connection with the
Corporation’s proposal to amend its
Bylaws to replace the plurality vote
standard for election of directors in
uncontested elections that is currently
in the Bylaws with a majority vote
standard for such elections. Specifically,
the Bylaws currently provide that
‘‘directors shall be elected by a plurality
of the votes of the shares present in
person or represented by proxy at the
meeting and entitled to vote on the
election of directors.’’ Under the
Corporation’s corporate governance
3 NYSE, a New York limited liability company, is
an indirect wholly-owned subsidiary of NYSE
Euronext.
1 15
PO 00000
proposed rule change as described in
Items I, II, and III 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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Federal Register / Vol. 75, No. 52 / Thursday, March 18, 2010 / Notices
sroberts on DSKD5P82C1PROD with NOTICES
guidelines previously adopted by the
Board, however, any director nominee
in an uncontested election (being an
election in which the number of
nominees equals the number of
directors to be elected) who receives a
greater number of ‘‘withheld’’ votes than
‘‘for’’ votes (including any ‘‘against’’
votes if that option were to be made
available on the proxy card) must
immediately tender his or her
resignation from the Board. The Board
will then decide, through a process
managed by the Nominating and
Governance Committee and excluding
the nominee in question, whether to
accept the resignation. In a contested
election (being an election in which the
number of nominees exceeds the
number of directors to be elected), the
unqualified plurality vote standard
controls.
Uncontested Election
The Corporation is proposing to add
an explicit majority voting provision for
uncontested director elections to the
Bylaws, thereby replacing the plurality
vote standard for election of directors in
such elections that is currently in the
Bylaws. The existing plurality vote
standard will be retained in connection
with contested elections for directors.
Under the proposed amendment to the
Bylaws, the proxy card would change
for an uncontested election, and the
stockholders would be given the choice
to vote ‘‘for,’’ ‘‘against’’ or ‘‘abstain’’ with
respect to each director nominee
individually.4 In such an election, each
director would be elected by the vote of
the majority of the votes cast with
respect to such director’s election,
meaning that the number of votes cast
‘‘for’’ such director’s election exceeded
the number of votes cast ‘‘against’’ that
director’s election (with ‘‘abstentions’’
not counted as a vote cast either ‘‘for’’ or
‘‘against’’ such director’s election). In the
event that any incumbent director fails
to receive a majority of the votes cast,
such director would be required to
tender his or her resignation to the
Nominating and Governance Committee
of the Board (or another committee
designated by the Board), and such
committee would make a
recommendation to the Board as to
whether to accept or reject such
resignation or whether other action
should be taken. The Board would then
act on the recommendation of such
committee and publicly disclose its
decision regarding the tendered
4 Stockholders are currently given three choices
when voting for a slate of director nominees: They
can vote (1) ‘‘for’’ all nominees, (2) ‘‘withheld’’ for
all nominees or (3) ‘‘withheld’’ for certain nominees
and ‘‘for’’ the remaining nominees.
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17:08 Mar 17, 2010
Jkt 220001
resignation and the rationale behind the
decision.
The proposed amendment to the
Bylaws also provides that a director
who tenders his or her resignation as
described above will not participate in
the recommendation by the Nominating
and Governance Committee or the Board
of Directors action regarding whether to
accept the tendered resignation. In the
event that each member of the
Nominating and Governance Committee
fails to receive a majority of the votes
cast in the same uncontested election,
then the independent directors who
received a majority of the votes cast in
such election must appoint a committee
among themselves to consider the
tendered resignation and recommend to
the Board whether to accept it.
However, if the only directors who
received a majority of the votes cast in
such election constitute three or fewer
directors, all directors may participate
in the action regarding whether to
accept the tendered resignation.
Pursuant to the proposed amendment
to the Bylaws, if the Board accepts a
director’s resignation as part of the
process described above for uncontested
elections, or if a nominee for director is
not elected and the nominee is not an
incumbent director, the Board may (i)
fill the remaining vacancy as provided
in Section 3.6 of the Bylaws and Article
VI, Section 6 of the Certificate of
Incorporation (involving a majority vote
of the remaining directors then in office,
though less than a quorum, or by the
sole remaining director) or (ii) decrease
the size of the Board as provided in
Section 3.1 of the Bylaws and Article VI,
Section 3 of the Certificate of
Incorporation (involving adoption of a
resolution by two-thirds of the directors
then in office).
General Election Requirements
The following applies to elections of
directors and is not being amended.
Section 2.7 of the Bylaws provides that,
unless otherwise provided in the
Certificate of Incorporation of the
Corporation, each stockholder entitled
to vote at any meeting of stockholders
shall be entitled to one vote for each
share of stock held by such stockholder
that has voting power upon the matter
in question. This entitlement, however,
is subject to the voting limitation in the
Certificate of Incorporation that
generally prohibits a beneficial owner,
either alone or together with related
parties, from voting or causing the
voting of shares of stock of the
corporation, in person or by proxy or
through any voting agreement or other
arrangement, to the extent that such
shares represent in the aggregate more
PO 00000
Frm 00100
Fmt 4703
Sfmt 4703
13171
than 10% of the then outstanding votes
entitled to be cast on such matter. Any
votes purported to be cast in excess of
this limitation will be disregarded.5
Relative to the foregoing, if any
beneficial owner of the Corporation’s
stock, either alone or together with
related parties, is party to any
agreement, plan or other arrangement
with any other person or entity relating
to shares of stock of the Corporation
entitled to vote on any matter under
circumstances in which (i) the result
would be that shares of stock of the
Corporation that would be subject to
such agreement, plan or other
arrangement would not be voted on any
matter, or any proxy relating thereto
would be withheld and (ii) the effect of
the agreement, plan or arrangement
would be to enable a beneficial owner
(but for these provisions), either alone
or together with related parties, to vote,
possess the right to vote or cause the
voting of shares of the Corporation’s
stock to exceed 10% of the then
outstanding votes entitled to be cast
(assuming that all shares of stock of the
Corporation that are subject to the
agreement, plan or other arrangement
are not outstanding votes entitled to be
cast on such matter), then this
recalculated 10% voting limitation will
be applicable. Any votes purported to be
cast in excess of this recalculated voting
limitation will be disregarded.6
At each meeting of stockholders of the
Corporation, except as otherwise
provided by law or the Certificate of
Incorporation of the Corporation, the
holders of a majority of the voting
power of the outstanding shares of stock
of the Corporation entitled to vote on a
matter at the meeting, present in person
or represented by proxy, will constitute
a quorum (it being understood that any
shares in excess of the applicable voting
limitation discussed above will not be
counted as present at the meeting and
will not be counted as outstanding
shares of stock of the Corporation for
purposes of determining whether there
is a quorum, unless and only to the
extent that such voting limitation shall
have been duly waived as provided in
the Certificate of Incorporation).7
2. Statutory Basis
The proposed rule change is
consistent with Section 6(b) 8 of the Act,
5 See NYSE Euronext Amended and Restated
Certificate of Incorporation at Article V, Section
1(A).
6 See id.
7 See NYSE Euronext Amended and Restated
Certificate of Incorporation at Article VIII, Section
2.
8 15 U.S.C. 78f(b).
E:\FR\FM\18MRN1.SGM
18MRN1
13172
Federal Register / Vol. 75, No. 52 / Thursday, March 18, 2010 / Notices
in general, and furthers the objectives of
Section 6(b)(1) 9 of the Act, which
requires a national securities exchange
to be so organized and have the capacity
to carry out the purposes of the Act and
to comply, and to enforce compliance
by its members and persons associated
with its members, with the provisions of
the Act. The proposed rule change is
also consistent with, and furthers the
objectives of, Section 6(b)(5) 10 of the
Act, in that it 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 facilitating transactions in securities,
to remove impediments to and perfect
the mechanism of a free and open
market and a national market system
and, in general, to protect investors and
the public interest. Specifically, the
Exchange believes that the proposed
rule change will protect investors and
the public interest by codifying in the
Bylaws the existing policy of the
Corporation aimed at ensuring better
corporate governance and accountability
to stockholders by means of a voting
procedure leading to election results
that more accurately reflect the views of
stockholders on the qualifications and
suitability of individual director
nominees, even if there are no
alternative director nominees to vote for
on the ballot.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any burden on competition that is 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 solicited
or received with respect to the proposed
rule change.
sroberts on DSKD5P82C1PROD with NOTICES
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within 35 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 NYSE consents, the
Commission will:
9 15
U.S.C. 78f(b)(1).
U.S.C. 78f(b)(5).
10 15
VerDate Nov<24>2008
17:08 Mar 17, 2010
Jkt 220001
(A) By order approve 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, as amended, is consistent with
the Act. Comments may be submitted by
any of the following methods:
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number SR–NYSE–2010–18 on the
subject line.
should be submitted on or before April
8, 2010.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.11
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010–5916 Filed 3–17–10; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–61700; File No. SR–
NASDAQ–2010–034]
Self-Regulatory Organizations; The
NASDAQ Stock Market LLC; Notice of
Filing and Immediate Effectiveness of
a Proposed Rule Change To Establish
an Optional Non-Display Usage Cap for
Internal Distributors of TotalView and
OpenView
March 12, 2010.
Paper Comments
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 March 5,
2010, The NASDAQ Stock Market LLC
(‘‘Nasdaq’’) filed with the Securities and
Exchange Commission (‘‘SEC’’ or
All submissions should refer to File
‘‘Commission’’) the proposed rule
Number SR–NYSE–2010–18. This file
change as described in Items I, II, and
number should be included on the
III, below, which Items have been
subject line if e-mail is used. To help the prepared by Nasdaq. The Commission is
Commission process and review your
publishing this notice to solicit
comments more efficiently, please use
comments on the proposed rule change
only one method. The Commission will from interested persons.
post all comments on the Commission’s
I. Self-Regulatory Organization’s
Internet Web site (https://www.sec.gov/
Statement of the Terms of Substance of
rules/sro.shtml). Copies of the
the Proposed Rule Change
submission, all subsequent
The Exchange proposes to create an
amendments, all written statements
optional non-display usage cap of
with respect to the proposed rule
$30,000 per month for internal
change that are filed with the
distributors of TotalView and
Commission, and all written
OpenView.
communications relating to the
The text of the proposed rule change
proposed rule change between the
Commission and any person, other than is below. Proposed new language is in
italics.3
those that may be withheld from the
public in accordance with the
*
*
*
*
*
provisions of 5 U.S.C. 552, will be
7023. Nasdaq TotalView
available for Web site viewing and
printing in the Commission’s Public
(a) No change.
(a)(1)(A)–(C) No change.
Reference Room on official business
(D) As an alternative to (a)(1)(A), (B)
days between the hours of 10 a.m. and
and (C), a market participant may
3 p.m. Copies of such filing also will be
purchase an enterprise license at a rate
available for inspection and copying at
of $30,000 per month for internal use of
the principal offices of the Exchange.
non-display data. The enterprise license
All comments received will be posted
entitles a distributor to provide
without change; the Commission does
not edit personal identifying
11 17 CFR 200.30–3(a)(12).
information from submissions. You
1 15 U.S.C. 78s(b)(1).
should submit only information that
2 17 CFR 240.19b–4.
you wish to make available publicly. All
3 Changes are marked to the rules of The
submissions should refer to File
NASDAQ Stock Market LLC found at https://
Number SR–NYSE–2010–18, and
nasdaqomx.cchwallstreet.com.
• Send paper comments in triplicate
to Elizabeth M. Murphy, Secretary,
Securities and Exchange Commission,
100 F Street, NE., Washington, DC
20549–1090.
PO 00000
Frm 00101
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]]>Agencies
[Federal Register Volume 75, Number 52 (Thursday, March 18, 2010)]
[Notices]
[Pages 13170-13172]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-5916]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-61694; File No. SR-NYSE-2010-18]
Self-Regulatory Organizations; Notice of Filing of Proposed Rule
Change by New York Stock Exchange LLC To Amend the Bylaws of NYSE
Euronext To Adopt a Majority Voting Standard in Uncontested Elections
of Directors
March 11, 2010.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 5, 2010, New York Stock Exchange LLC (``NYSE'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III 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.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange is submitting this rule filing in connection with the
proposal of its ultimate parent, NYSE Euronext (the
``Corporation''),\3\ to amend its bylaws (``Bylaws'') to replace the
plurality vote standard for election of directors in uncontested
elections that is currently in the Bylaws with a majority vote standard
for such elections. The existing plurality vote standard will be
retained in connection with contested elections for directors. The text
of the proposed rule change is available at the Exchange, at the
Commission's Public Reference Room, and on the Exchange's Web site at
https://www.nyse.com.
---------------------------------------------------------------------------
\3\ NYSE, a New York limited liability company, is an indirect
wholly-owned subsidiary of NYSE Euronext.
---------------------------------------------------------------------------
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of and basis for the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of these statements may be examined at
the places specified in Item IV below. The 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 is submitting this rule filing in connection with the
Corporation's proposal to amend its Bylaws to replace the plurality
vote standard for election of directors in uncontested elections that
is currently in the Bylaws with a majority vote standard for such
elections. Specifically, the Bylaws currently provide that ``directors
shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote on
the election of directors.'' Under the Corporation's corporate
governance
[[Page 13171]]
guidelines previously adopted by the Board, however, any director
nominee in an uncontested election (being an election in which the
number of nominees equals the number of directors to be elected) who
receives a greater number of ``withheld'' votes than ``for'' votes
(including any ``against'' votes if that option were to be made
available on the proxy card) must immediately tender his or her
resignation from the Board. The Board will then decide, through a
process managed by the Nominating and Governance Committee and
excluding the nominee in question, whether to accept the resignation.
In a contested election (being an election in which the number of
nominees exceeds the number of directors to be elected), the
unqualified plurality vote standard controls.
Uncontested Election
The Corporation is proposing to add an explicit majority voting
provision for uncontested director elections to the Bylaws, thereby
replacing the plurality vote standard for election of directors in such
elections that is currently in the Bylaws. The existing plurality vote
standard will be retained in connection with contested elections for
directors. Under the proposed amendment to the Bylaws, the proxy card
would change for an uncontested election, and the stockholders would be
given the choice to vote ``for,'' ``against'' or ``abstain'' with
respect to each director nominee individually.\4\ In such an election,
each director would be elected by the vote of the majority of the votes
cast with respect to such director's election, meaning that the number
of votes cast ``for'' such director's election exceeded the number of
votes cast ``against'' that director's election (with ``abstentions''
not counted as a vote cast either ``for'' or ``against'' such
director's election). In the event that any incumbent director fails to
receive a majority of the votes cast, such director would be required
to tender his or her resignation to the Nominating and Governance
Committee of the Board (or another committee designated by the Board),
and such committee would make a recommendation to the Board as to
whether to accept or reject such resignation or whether other action
should be taken. The Board would then act on the recommendation of such
committee and publicly disclose its decision regarding the tendered
resignation and the rationale behind the decision.
---------------------------------------------------------------------------
\4\ Stockholders are currently given three choices when voting
for a slate of director nominees: They can vote (1) ``for'' all
nominees, (2) ``withheld'' for all nominees or (3) ``withheld'' for
certain nominees and ``for'' the remaining nominees.
---------------------------------------------------------------------------
The proposed amendment to the Bylaws also provides that a director
who tenders his or her resignation as described above will not
participate in the recommendation by the Nominating and Governance
Committee or the Board of Directors action regarding whether to accept
the tendered resignation. In the event that each member of the
Nominating and Governance Committee fails to receive a majority of the
votes cast in the same uncontested election, then the independent
directors who received a majority of the votes cast in such election
must appoint a committee among themselves to consider the tendered
resignation and recommend to the Board whether to accept it. However,
if the only directors who received a majority of the votes cast in such
election constitute three or fewer directors, all directors may
participate in the action regarding whether to accept the tendered
resignation.
Pursuant to the proposed amendment to the Bylaws, if the Board
accepts a director's resignation as part of the process described above
for uncontested elections, or if a nominee for director is not elected
and the nominee is not an incumbent director, the Board may (i) fill
the remaining vacancy as provided in Section 3.6 of the Bylaws and
Article VI, Section 6 of the Certificate of Incorporation (involving a
majority vote of the remaining directors then in office, though less
than a quorum, or by the sole remaining director) or (ii) decrease the
size of the Board as provided in Section 3.1 of the Bylaws and Article
VI, Section 3 of the Certificate of Incorporation (involving adoption
of a resolution by two-thirds of the directors then in office).
General Election Requirements
The following applies to elections of directors and is not being
amended. Section 2.7 of the Bylaws provides that, unless otherwise
provided in the Certificate of Incorporation of the Corporation, each
stockholder entitled to vote at any meeting of stockholders shall be
entitled to one vote for each share of stock held by such stockholder
that has voting power upon the matter in question. This entitlement,
however, is subject to the voting limitation in the Certificate of
Incorporation that generally prohibits a beneficial owner, either alone
or together with related parties, from voting or causing the voting of
shares of stock of the corporation, in person or by proxy or through
any voting agreement or other arrangement, to the extent that such
shares represent in the aggregate more than 10% of the then outstanding
votes entitled to be cast on such matter. Any votes purported to be
cast in excess of this limitation will be disregarded.\5\
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\5\ See NYSE Euronext Amended and Restated Certificate of
Incorporation at Article V, Section 1(A).
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Relative to the foregoing, if any beneficial owner of the
Corporation's stock, either alone or together with related parties, is
party to any agreement, plan or other arrangement with any other person
or entity relating to shares of stock of the Corporation entitled to
vote on any matter under circumstances in which (i) the result would be
that shares of stock of the Corporation that would be subject to such
agreement, plan or other arrangement would not be voted on any matter,
or any proxy relating thereto would be withheld and (ii) the effect of
the agreement, plan or arrangement would be to enable a beneficial
owner (but for these provisions), either alone or together with related
parties, to vote, possess the right to vote or cause the voting of
shares of the Corporation's stock to exceed 10% of the then outstanding
votes entitled to be cast (assuming that all shares of stock of the
Corporation that are subject to the agreement, plan or other
arrangement are not outstanding votes entitled to be cast on such
matter), then this recalculated 10% voting limitation will be
applicable. Any votes purported to be cast in excess of this
recalculated voting limitation will be disregarded.\6\
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\6\ See id.
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At each meeting of stockholders of the Corporation, except as
otherwise provided by law or the Certificate of Incorporation of the
Corporation, the holders of a majority of the voting power of the
outstanding shares of stock of the Corporation entitled to vote on a
matter at the meeting, present in person or represented by proxy, will
constitute a quorum (it being understood that any shares in excess of
the applicable voting limitation discussed above will not be counted as
present at the meeting and will not be counted as outstanding shares of
stock of the Corporation for purposes of determining whether there is a
quorum, unless and only to the extent that such voting limitation shall
have been duly waived as provided in the Certificate of
Incorporation).\7\
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\7\ See NYSE Euronext Amended and Restated Certificate of
Incorporation at Article VIII, Section 2.
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2. Statutory Basis
The proposed rule change is consistent with Section 6(b) \8\ of the
Act,
[[Page 13172]]
in general, and furthers the objectives of Section 6(b)(1) \9\ of the
Act, which requires a national securities exchange to be so organized
and have the capacity to carry out the purposes of the Act and to
comply, and to enforce compliance by its members and persons associated
with its members, with the provisions of the Act. The proposed rule
change is also consistent with, and furthers the objectives of, Section
6(b)(5) \10\ of the Act, in that it 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 facilitating transactions in securities, to remove
impediments to and perfect the mechanism of a free and open market and
a national market system and, in general, to protect investors and the
public interest. Specifically, the Exchange believes that the proposed
rule change will protect investors and the public interest by codifying
in the Bylaws the existing policy of the Corporation aimed at ensuring
better corporate governance and accountability to stockholders by means
of a voting procedure leading to election results that more accurately
reflect the views of stockholders on the qualifications and suitability
of individual director nominees, even if there are no alternative
director nominees to vote for on the ballot.
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\8\ 15 U.S.C. 78f(b).
\9\ 15 U.S.C. 78f(b)(1).
\10\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is 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 solicited or received with respect to the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 35 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 NYSE consents, the Commission will:
(A) By order approve 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, as amended, is consistent with the Act. Comments may be
submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NYSE-2010-18 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-NYSE-2010-18. 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 (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room 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 offices
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 Number SR-
NYSE-2010-18, and should be submitted on or before April 8, 2010.
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\11\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-5916 Filed 3-17-10; 8:45 am]
BILLING CODE 8011-01-P
