Self-Regulatory Organizations; New York Stock Exchange LLC; Order Approving Proposed Rule Change To Amend the Bylaws of NYSE Euronext To Adopt a Majority Voting Standard in Uncontested Elections of Directors, 22169-22170 [2010-9679]
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Federal Register / Vol. 75, No. 80 / Tuesday, April 27, 2010 / Notices
By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010–9811 Filed 4–23–10; 4:15 pm]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–61953; File No. SR–
NYSEArca–2010–07]
Self-Regulatory Organizations; NYSE
Arca, Inc.; Notice of Withdrawal of
Proposed Rule Change Relating to
Listing of AdvisorShares WCM/BNY
Mellon Focused Growth ADR ETF
April 21, 2010.
On February 23, 2010, NYSE Arca,
Inc. (‘‘NYSE Arca’’ or ‘‘Exchange’’),
through its wholly owned subsidiary,
NYSE Arca Equities, Inc. (‘‘NYSE Arca
Equities’’), filed with the Securities and
Exchange Commission (‘‘Commission’’),
pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a
proposed rule change to list and trade
shares (‘‘Shares’’) of the AdvisorShares
WCM/BNY Mellon Focused Growth
ADR ETF (the ‘‘Fund’’) under NYSE
Arca Equities Rule 8.600 (Managed
Fund Shares). The proposed rule change
was published in the Federal Register
on March 10, 2010.3 No comments were
received on the proposal. On April 9,
2010, the Exchange withdrew the
proposed rule change.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.4
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010–9677 Filed 4–26–10; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–61947; File No. SR–NYSE–
2010–18]
mstockstill on DSKH9S0YB1PROD with NOTICES
Self-Regulatory Organizations; New
York Stock Exchange LLC; Order
Approving Proposed Rule Change To
Amend the Bylaws of NYSE Euronext
To Adopt a Majority Voting Standard in
Uncontested Elections of Directors
April 20, 2010.
On March 5, 2010, the New York
Stock Exchange LLC (‘‘NYSE’’ or
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 See Securities Exchange Act Release No. 61642
(March 3, 2010), 75 FR 11216.
4 17 CFR 200.30–3(a)(12).
‘‘Exchange’’) filed with the Securities
and Exchange Commission
(‘‘Commission’’), pursuant to Section
19(b)(1) of the Securities Exchange Act
of 1934 (‘‘Act’’),1 and Rule 19b–4
thereunder,2 a proposed rule change to
amend the By-Laws of its parent
corporation, NYSE Euronext
(‘‘Corporation’’). The proposed rule
change was published for comment in
the Federal Register on March 18,
2010.3 The Commission received no
comment letters on the proposed rule
change. This order approves the
proposed rule change.
On behalf of the Corporation, NYSE
proposed to make certain amendments
to the Corporation’s By-Laws to modify
its direct election procedures. Under the
existing By-Laws, directors are 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
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.
NYSE proposed to amend the
Corporation’s By-Laws to add an
explicit majority voting provision for
uncontested director elections that
would replace the plurality vote
standard for such elections that is
currently in the By-Laws. Contested
elections would remain subject to the
plurality standard.
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. 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
either ‘‘for’’ or ‘‘against’’ such director’s
election). If any incumbent director fails
to receive a majority of the votes cast,
1 15
2 17
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16:09 Apr 26, 2010
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1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 See Securities Exchange Act Release No. 61694
(March 11, 2010), 75 FR 13170.
2 17
PO 00000
Frm 00075
Fmt 4703
Sfmt 4703
22169
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 recommend to the
Board 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
Pursuant to the proposed amendment
to the By-Laws, 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 By-Laws 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).
After careful review, the Commission
finds that the proposed rule change is
consistent with the requirements of the
Act and the rules and regulations
thereunder applicable to a national
securities exchange.5 In particular, the
Commission finds that the proposed
rule change is consistent with Section
6(b)(1) of the Act,6 which requires an
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
Act. The Commission also finds that the
4 The proposed amendment to the Bylaws also
provides that a director who tenders his or her
resignation would not participate in the
recommendation by the Nominating and
Governance Committee or the Board of Directors
action regarding whether to accept the tendered
resignation. If 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.
5 In approving this proposed rule change, the
Commission notes that it has considered the
proposed rule’s impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
6 15 U.S.C. 78(b)(1).
E:\FR\FM\27APN1.SGM
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22170
Federal Register / Vol. 75, No. 80 / Tuesday, April 27, 2010 / Notices
proposed rule change is consistent with
Section 6(b)(5) of the Act,7 which
requires that the rules of the exchange
be designed, among other things, to
prevent fraudulent and manipulative
acts and practices, 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.
The Commission believes that the
proposed rule change to amend the
Corporation’s By-Laws to adopt a
majority vote standard for uncontested
elections is consistent with the Act. The
Commission believes that the proposed
rule change is designed to allow the
members of the Corporation’s Board of
Directors to be elected in a manner that
closely reflects the desires of its
shareholders, while also providing a
process for addressing the circumstance
when a director fails to receive a
majority of votes in an uncontested
election.8
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act, that the
proposed rule change (SR–NYSE–2010–
18) be, and it hereby is, approved.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.9
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010–9679 Filed 4–26–10; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–61946; File No. SR–CBOE–
2010–032]
Self-Regulatory Organizations;
Chicago Board Options Exchange,
Incorporated; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change To Remove a Feature and
Revise Outdated Text Regarding
Certain Execution Rules
April 20, 2010.
mstockstill on DSKH9S0YB1PROD with NOTICES
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (the
‘‘Act’’) 1 and Rule 19b–4 thereunder,2
notice is hereby given that, on April 5,
2010, Chicago Board Options Exchange,
Incorporated (‘‘CBOE’’ or the
7 15
U.S.C. 78f(b)(5).
Commission notes that NYSE represented
that the proposed change would not affect the
voting limitations contained in the Corporation’s
certificate of incorporation.
9 17 CFR 200.30–3(a)(12).
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
8 The
VerDate Nov<24>2008
16:09 Apr 26, 2010
Jkt 220001
‘‘Exchange’’) filed with the Securities
and Exchange Commission (the
‘‘Commission’’) the proposed rule
change as described in Items I and II
below, which Items have been prepared
by the self-regulatory organization. The
Exchange filed the proposal as a ‘‘noncontroversial’’ proposed rule change
pursuant to Section 19(b)(3)(A)(iii) of
the Act 3 and Rule 19b–4(f)(6)
thereunder.4 The Commission is
publishing this notice to solicit
comments on the proposed rule change
from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange is proposing to
eliminate a feature and revise outdated
text regarding certain of its execution
rules. The text of the proposed rule
change is available on CBOE’s Web site
at https://www.cboe.org, on the
Commission’s Web site at https://
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
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 those 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 parts 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 proposing to
eliminate a feature and revise outdated
text regarding certain of its execution
rules.
In August 2008,5 the Exchange
received Securities and Exchange
Commission (‘‘Commission’’) approval
of a rule change to give certain nonbroker-dealer orders (identified as
‘‘Voluntary Professional’’ orders) the
priority given broker-dealer orders
rather than the priority given to public
3 15
U.S.C. 78s(b)(3)(A)(iii).
CFR 240.19b–4(f)(6).
5 Securities Exchange Act Release No. 58327
(August 7, 2008), 73 FR 47988 (August 15, 2008)
(SR–CBOE–2008–09).
4 17
PO 00000
Frm 00076
Fmt 4703
Sfmt 4703
customer orders. In December 2009,6 the
Exchange received Commission
approval of a rule change to give certain
other non-broker-dealer orders
(identified as ‘‘Professional’’ orders) the
priority given broker-dealer orders
rather than the priority given to public
customer orders. The rules changed the
execution priority in various Exchange
execution rules as they existed in
August 2008 and December 2009,
respectively. After reviewing its
execution rules, the Exchange has
determined to eliminate a feature within
its execution rules pertaining to
customer-to-customer immediate cross
orders related to Voluntary
Professionals and Professionals.
Specifically, the Exchange is proposing
to amend the execution rules as follows:
Rule 6.74A.09 pertains to customerto-customer immediate cross orders.
Under this provision, the Exchange may
determine whether the customer-tocustomer immediate cross functionality
will be available on a class-by-class
basis. If the functionality is available, an
agency order for the account of a nonbroker-dealer customer may be paired
with a solicited order for the account of
a non-broker-dealer customer and such
orders will be crossed without any
auction exposure period, provided
certain conditions are met. For purposes
of this provision, the rule provides that
Voluntary Professional and Professional
orders may be considered customer
agency orders or solicited orders.7
However, the system does not currently
recognize Voluntary Professional and
Professional orders as customer orders
for purposes of the customer-tocustomer immediate cross. Thus, the
proposed rule change narrows the
definition of customer-to-customer
immediate cross orders to only public
customer orders that are not Voluntary
Professionals or Professionals, which is
consistent with the current operation of
the system. The rule will continue to
provide that customer-to-customer
immediate cross orders cannot be
executed at the same price as any
resting customer orders (i.e., nonbroker-dealer orders that are not
Voluntary Professional or Professional
orders).8
6 Securities Exchange Act Release No. 61198
(December 17, 2009), 74 FR 68880 (December 29,
2009) (SR–CBOE–2009–078).
7 See cross reference to Rule 6.74A.09 in Rule
1.1(fff) and (ggg).
8 Under CBOE Rules 6.45A.01 through .02 and
6.45B.01 through .02, members are required to
expose trading interest to the market before
executing agency orders as principal or before
executing agency orders against orders that were
solicited from other broker-dealers (i.e., proprietary
and solicited crossing transactions). However, the
CBOE options rules do not contain any limitations
E:\FR\FM\27APN1.SGM
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]]>Agencies
[Federal Register Volume 75, Number 80 (Tuesday, April 27, 2010)]
[Notices]
[Pages 22169-22170]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-9679]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-61947; File No. SR-NYSE-2010-18]
Self-Regulatory Organizations; New York Stock Exchange LLC; Order
Approving Proposed Rule Change To Amend the Bylaws of NYSE Euronext To
Adopt a Majority Voting Standard in Uncontested Elections of Directors
April 20, 2010.
On March 5, 2010, the New York Stock Exchange LLC (``NYSE'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to amend the By-Laws of its parent corporation,
NYSE Euronext (``Corporation''). The proposed rule change was published
for comment in the Federal Register on March 18, 2010.\3\ The
Commission received no comment letters on the proposed rule change.
This order approves the proposed rule change.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Securities Exchange Act Release No. 61694 (March 11,
2010), 75 FR 13170.
---------------------------------------------------------------------------
On behalf of the Corporation, NYSE proposed to make certain
amendments to the Corporation's By-Laws to modify its direct election
procedures. Under the existing By-Laws, directors are 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 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.
NYSE proposed to amend the Corporation's By-Laws to add an explicit
majority voting provision for uncontested director elections that would
replace the plurality vote standard for such elections that is
currently in the By-Laws. Contested elections would remain subject to
the plurality standard.
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. 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 either ``for'' or ``against'' such director's election). If
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 recommend to the
Board 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\
---------------------------------------------------------------------------
\4\ The proposed amendment to the Bylaws also provides that a
director who tenders his or her resignation would not participate in
the recommendation by the Nominating and Governance Committee or the
Board of Directors action regarding whether to accept the tendered
resignation. If 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 By-Laws, 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 By-Laws 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).
After careful review, the Commission finds that the proposed rule
change is consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities exchange.\5\
In particular, the Commission finds that the proposed rule change is
consistent with Section 6(b)(1) of the Act,\6\ which requires an
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 Act. The
Commission also finds that the
[[Page 22170]]
proposed rule change is consistent with Section 6(b)(5) of the Act,\7\
which requires that the rules of the exchange be designed, among other
things, to prevent fraudulent and manipulative acts and practices, 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.
---------------------------------------------------------------------------
\5\ In approving this proposed rule change, the Commission notes
that it has considered the proposed rule's impact on efficiency,
competition, and capital formation. See 15 U.S.C. 78c(f).
\6\ 15 U.S.C. 78(b)(1).
\7\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
The Commission believes that the proposed rule change to amend the
Corporation's By-Laws to adopt a majority vote standard for uncontested
elections is consistent with the Act. The Commission believes that the
proposed rule change is designed to allow the members of the
Corporation's Board of Directors to be elected in a manner that closely
reflects the desires of its shareholders, while also providing a
process for addressing the circumstance when a director fails to
receive a majority of votes in an uncontested election.\8\
---------------------------------------------------------------------------
\8\ The Commission notes that NYSE represented that the proposed
change would not affect the voting limitations contained in the
Corporation's certificate of incorporation.
---------------------------------------------------------------------------
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
that the proposed rule change (SR-NYSE-2010-18) be, and it hereby is,
approved.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\9\
---------------------------------------------------------------------------
\9\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-9679 Filed 4-26-10; 8:45 am]
BILLING CODE 8011-01-P
