Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by NASDAQ OMX BX, Inc. To Amend the By-Laws of The NASDAQ OMX Group, Inc., 23827-23829 [2010-10309]
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Federal Register / Vol. 75, No. 85 / Tuesday, May 4, 2010 / Notices
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–2010–050. 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,11 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 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; 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–NASDAQ–2010–050 and
should be submitted on or before May
25, 2010.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.12
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010–10275 Filed 5–3–10; 8:45 am]
mstockstill on DSKH9S0YB1PROD with NOTICES
BILLING CODE 8010–01–P
text of the proposed rule change is
available on the Commission’s Web site at https://
www.sec.gov/rules/sro.shtml.
12 17 CFR 200.30–3(a)(12).
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–61993; File No. SR–BX–
2010–029]
Self-Regulatory Organizations; Notice
of Filing and Immediate Effectiveness
of Proposed Rule Change by NASDAQ
OMX BX, Inc. To Amend the By-Laws
of The NASDAQ OMX Group, Inc.
April 27, 2010.
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 April 9,
2010, NASDAQ OMX BX, Inc. (‘‘BX’’ 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.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to file a
proposed rule change relating to the ByLaws 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 https://www.nasdaqtrader.com/
micro.aspx?id=BXRulefilings, at the
principal office of the Exchange, 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
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.
11 The
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1 15
2 17
PO 00000
U.S.C. 78s(b)(1).
CFR 240.19b–4.
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23827
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
NASDAQ OMX has proposed making
certain amendments to its By-Laws to
make improvements in its governance.
In SR–NASDAQ–2010–025, The
NASDAQ Stock Market LLC (‘‘NASDAQ
Exchange’’) sought Commission
approval to adopt these By-Laws
changes as part of the rules of NASDAQ
Exchange, and the Commission granted
approval to these changes in an order
dated April 8, 2010.3 The Exchange is
now submitting this filing on an
immediately effective basis to adopt the
same By-Law changes as rules of the
Exchange.
The NASDAQ OMX By-Laws
previously provided that each director
receiving a plurality of the votes at any
election of directors at which a quorum
is present is duly elected to the Board.
Under Corporate Governance Guidelines
adopted by the Board, however, any
director in an uncontested election who
received a greater number of votes
‘‘withheld’’ from his or her election than
votes ‘‘for’’ such election was required to
tender his or her resignation promptly
following receipt of the certification of
the stockholder vote. The NASDAQ
OMX Nominating & Governance
Committee then considered the
resignation offer and recommended to
the Board whether to accept it. Within
90 days after the certification of the
election results, the Board determined
whether to accept or reject the
resignation. Promptly thereafter, the
Board announced its decision by means
of a press release. In a contested election
(i.e., where the number of nominees
exceeds the number of directors to be
elected), the unqualified plurality
standard controls.
Uncontested Election
NASDAQ OMX recently amended its
By-Laws to adopt a majority vote
standard, specifically By-Law Article IV,
Section 4.4 of the By-Laws was
amended to provide that, in an
uncontested election, directors shall be
elected by holders of a majority of the
votes cast at any meeting for the election
of directors at which a quorum is
present.4 Under the majority voting
standard, a nominee who fails to receive
the requisite vote will not be duly
3 See Securities Exchange Act Release No. 61876
(April 8, 2010), 75 FR 19436 (April 14, 2010) (SR–
NASDAQ–2010–025).
4 NASDAQ OMX also amended its Corporate
Governance Guidelines to reflect the majority vote
standard for uncontested director elections.
E:\FR\FM\04MYN1.SGM
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Federal Register / Vol. 75, No. 85 / Tuesday, May 4, 2010 / Notices
elected to the Board. The By-Laws
require that any incumbent nominee, as
a condition to his or her nomination for
election, must submit in writing an
irrevocable resignation, the effectiveness
of which is conditioned upon the
director’s failure to receive the requisite
vote in any uncontested election and the
Board’s acceptance of the resignation.
The resignation will be considered by
the Nominating & Governance
Committee and acted upon by the Board
in the same manner described above.5
Acceptance of that resignation by the
Board shall be in accordance with the
policies and procedures adopted by the
Board for such purpose. NASDAQ OMX
specifies its policies and procedures
pertaining to the election of its directors
in its By-Laws. Specifically, the policies
and procedures for the acceptance of the
resignation of a director, by the Board,
are proposed to be specified in By-Law
Article IV, Section 4.4. There are no
additional policies and procedures other
than what is indicated in the By-Laws.
In the event that NASDAQ OMX
proposes to further amend its By-Laws
with respect to the election of directors,
including the adoption of any policies
and procedure with respect to such
election, NASDAQ OMX shall file a
proposed rule change with the
Commission to seek approval of those
amendments.
Contested Election
NASDAQ OMX codified its process
for a contested election. The directors
will continue to be elected by a plurality
vote in a contested election. There is no
change to the process for contested
elections because if a majority voting
standard were to apply in a contested
election, the likelihood of a ‘‘failed
election’’ (i.e., a situation in which no
director receives the requisite vote)
would be more pronounced. Moreover,
the rationale underpinning the majority
voting policy does not apply in
contested elections where stockholders
are offered a choice among competing
candidates. Directors are elected by a
plurality of votes present in person or
represented by proxy at a meeting. The
directors who receive the greatest
number of votes cast for election of
directors at the meeting will be elected.
mstockstill on DSKH9S0YB1PROD with NOTICES
General Election Requirements
The following applies to elections of
directors and were not amended. Each
share of common stock has one vote,6
subject to the voting limitation in
5 See NASDAQ OMX By-Law Article IV, Section
4.5.
6 See NASDAQ OMX Certificate of Incorporation
at Article IV, C.1(a).
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18:58 May 03, 2010
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NASDAQ OMX’s certificate of
incorporation that generally prohibits a
holder from voting in excess of 5% of
the total voting power of NASDAQ
OMX.7 In addition, each note holder is
entitled to the number of votes equal to
the number of shares of common stock
into which such note could be
converted on the record date, subject to
the 5% voting limitation contained in
the certificate of incorporation.
The presence of owners of a majority
(greater than 50%) of the votes entitled
to be cast by holder of NASDAQ OMX
voting securities constitutes a quorum.
Presence may be in person or by proxy.
Any securities not voted, by abstention,
will not impact the vote.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
the provisions of Section 6 of the Act,8
in general, and with Sections 6(b)(1) and
(b)(5) of the Act,9 in particular, in that
the proposal enables the 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 selfregulatory 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
mechanism of a free and open market
and a national market system, and, in
general, to protect investors and the
public interest. The proposed
amendments adopting a majority vote
standard would enable the directors to
be elected in a manner reflective of the
desires of shareholders and provide a
mechanism to protect against the
election of directors by less than a
majority vote of the shareholders.
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 not
necessary or appropriate in furtherance
of the purposes of the Act.
7 See NASDAQ OMX Certificate of Incorporation
at Article IV, C.1(b)2.
8 15 U.S.C. 78f.
9 15 U.S.C. 78f(b)(2)[sic], (5).
PO 00000
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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 after the date of
the filing, or such shorter time as the
Commission may designate, if
consistent with the protection of
investors and the public interest, it has
become effective pursuant to 19(b)(3)(A)
of the Act 10 and Rule 19b–4(f)(6) 11
thereunder.
The Exchange has noted that the
proposed rule change is identical to a
proposed rule change recently approved
by the Commission with respect to the
NASDAQ Exchange 12 and has
requested that the Commission waive
the 30-day operative delay to ensure
that NASDAQ OMX is able to
implement the proposed rule change
without undue delay. The Commission
has determined that waiving the 30-day
operative delay is consistent with the
protection of investors and the public
interest because such waiver will enable
NASDAQ OMX to implement the
proposed rule change without undue
delay in a manner consistent with a
proposed rule change previously
approved by the Commission.13
Therefore, the Commission designates
the proposal operative upon filing.14
At any time within 60 days of the
filing of the proposed rule change, the
Commission may summarily abrogate
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.
10 15
U.S.C. 78s(b)(3)(A).
CFR 240.19b–4(f)(6). In addition, Rule 19b–
4(f)(6) requires a self-regulatory organization to give
the Commission written notice of its intent to file
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.
12 See Securities Exchange Act Release No. 61876
(April 8, 2010), 75 FR 19436 (April 14, 2010) (SR–
NASDAQ–2010–025).
13 Id.
14 For purposes only of waiving the 30-day
operative delay, the Commission has considered the
proposed rule’s impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
11 17
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Federal Register / Vol. 75, No. 85 / Tuesday, May 4, 2010 / Notices
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:
[FR Doc. 2010–10309 Filed 5–3–10; 8:45 am]
BILLING CODE 8010–01–P
• 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–BX–2010–029 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.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
[Release No. 34–61996; File No. SR–NSX–
2010–04]
1. Purpose
Self-Regulatory Organizations;
National Stock Exchange, Inc.; Notice
of Filing and Immediate Effectiveness
of Proposed Rule Change To Amend
the Fee and Rebate Schedule Issued
Pursuant to Exchange Rule 16.1(c)
With Respect to the Liquidity Adding
Rebate for Securities Priced Under
One Dollar
April 28, 2010.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (the
‘‘Act’’) 1 and Rule 19b–4 thereunder,2
All submissions should refer to File
notice is hereby given that on April 9,
Number SR–BX–2010–029. This file
2010, National Stock Exchange, Inc.
number should be included on the
subject line if e-mail is used. To help the filed with the Securities and Exchange
Commission (‘‘Commission’’) the
Commission process and review your
proposed rule change, as described in
comments more efficiently, please use
only one method. The Commission will Items I, II, and III below, which Items
post all comments on the Commission’s have been prepared by the Exchange.
The Commission is publishing this
Internet Web site (https://www.sec.gov/
notice to solicit comment on the
rules/sro.shtml). Copies of the
proposed rule change from interested
submission, all subsequent
persons.
amendments, all written statements
I. Self-Regulatory Organization’s
with respect to the proposed rule
Statement of the Terms of the Substance
change that are filed with the
of the Proposed Rule Change
Commission, and all written
communications relating to the
National Stock Exchange, Inc.
proposed rule change between the
(‘‘NSX® ’’ or ‘‘Exchange’’) is proposing to
Commission and any person, other than amend the Fee and Rebate Schedule (the
those that may be withheld from the
‘‘Fee Schedule’’) issued pursuant to
public in accordance with the
Exchange Rule 16.1(c) to adjust the
provisions of 5 U.S.C. 552, will be
liquidity adding rebate for securities
available for Web site viewing and
priced under one dollar.
The text of the proposed rule change
printing in the Commission’s Public
is available on the Exchange’s Web site
Reference Room, on official business
at https://www.nsx.com, at the principal
days between the hours of 10 a.m. and
office of the Exchange, and at the
3 p.m. Copies of the filing also will be
Commission’s Public Reference Room.
available for inspection and copying at
the principal office of the Exchange. All II. Self-Regulatory Organization’s
comments received will be posted
Statement of the Purpose of, and
without change; the Commission does
Statutory Basis for, the Proposed Rule
not edit personal identifying
Change
information from submissions. You
In its filing with the Commission, the
should submit only information that
Exchange included statements
you wish to make available publicly. All concerning the purpose of and basis for
submissions should refer to File
the proposed rule change and discussed
Number SR–BX–2010–029 and should
any comments it received on the
be submitted on or before May 25, 2010.
15 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
1 15
VerDate Mar<15>2010
18:58 May 03, 2010
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 parts of such
statements.
SECURITIES AND EXCHANGE
COMMISSION
Electronic Comments
mstockstill on DSKH9S0YB1PROD with NOTICES
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.15
Elizabeth M. Murphy,
Secretary.
23829
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With this rule change, the Exchange is
proposing to modify the Fee Schedule to
adjust the liquidity adding rebate for
securities priced under one dollar in
both the Automatic Execution mode of
order interaction (‘‘AutoEx’’) and the
Order Delivery mode of order
interaction (‘‘Order Delivery’’).3
AutoEx Liquidity Adding Rebate For
Securities Priced Under One Dollar
For orders in securities priced under
one dollar that provide liquidity in
AutoEx, the Fee Schedule currently
provides that an ETP Holder receives a
rebate of 0.25% of trade value, where
‘‘trade value’’ is defined as the dollar
amount equal to the price per share
multiplied by the number of shares
executed.4 The proposed rule change
adjusts such rebate to be the lesser of
the foregoing amount and 25% of the
quote spread, where ‘‘quote spread’’ is
defined as the dollar amount equal to
the number of shares executed
multiplied by the difference at the time
of execution between (x) the price per
share of the national best bid, and (y)
the price per share of the national best
offer.5
Order Delivery Liquidity Adding Rebate
For Securities Priced Under One Dollar
For orders in securities priced under
one dollar that provide liquidity in
Order Delivery, the Fee Schedule
currently provides that an ETP Holder
receives a rebate of 0.20% of trade
value. The proposed rule change adjusts
such rebate to be the lesser of 0.20% of
trade value and 20% of the quote
spread.
In both Order Delivery and AutoEx,
no quote spread rebate is payable in the
event of locked or crossed quotations.
Finally, the proposed rule change
modifies for purposes of internal
consistency the language in the Fee
Schedule to make clear that Zero
3 The Exchange’s two modes of order interaction
are described in NSX Rule 11.13(b).
4 See Explanatory Endnote (6) to the Fee
Schedule.
5 See Explanatory Endnote (12) to the Fee
Schedule.
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]]>Agencies
[Federal Register Volume 75, Number 85 (Tuesday, May 4, 2010)]
[Notices]
[Pages 23827-23829]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-10309]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-61993; File No. SR-BX-2010-029]
Self-Regulatory Organizations; Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by NASDAQ OMX BX, Inc. To Amend
the By-Laws of The NASDAQ OMX Group, Inc.
April 27, 2010.
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 April 9, 2010, NASDAQ OMX BX, Inc. (``BX'' 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.
---------------------------------------------------------------------------
\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 proposes to file a proposed rule change relating to
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 https://www.nasdaqtrader.com/micro.aspx?id=BXRulefilings, at
the principal office of the Exchange, 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 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
NASDAQ OMX has proposed making certain amendments to its By-Laws to
make improvements in its governance. In SR-NASDAQ-2010-025, The NASDAQ
Stock Market LLC (``NASDAQ Exchange'') sought Commission approval to
adopt these By-Laws changes as part of the rules of NASDAQ Exchange,
and the Commission granted approval to these changes in an order dated
April 8, 2010.\3\ The Exchange is now submitting this filing on an
immediately effective basis to adopt the same By-Law changes as rules
of the Exchange.
---------------------------------------------------------------------------
\3\ See Securities Exchange Act Release No. 61876 (April 8,
2010), 75 FR 19436 (April 14, 2010) (SR-NASDAQ-2010-025).
---------------------------------------------------------------------------
The NASDAQ OMX By-Laws previously provided that each director
receiving a plurality of the votes at any election of directors at
which a quorum is present is duly elected to the Board. Under Corporate
Governance Guidelines adopted by the Board, however, any director in an
uncontested election who received a greater number of votes
``withheld'' from his or her election than votes ``for'' such election
was required to tender his or her resignation promptly following
receipt of the certification of the stockholder vote. The NASDAQ OMX
Nominating & Governance Committee then considered the resignation offer
and recommended to the Board whether to accept it. Within 90 days after
the certification of the election results, the Board determined whether
to accept or reject the resignation. Promptly thereafter, the Board
announced its decision by means of a press release. In a contested
election (i.e., where the number of nominees exceeds the number of
directors to be elected), the unqualified plurality standard controls.
Uncontested Election
NASDAQ OMX recently amended its By-Laws to adopt a majority vote
standard, specifically By-Law Article IV, Section 4.4 of the By-Laws
was amended to provide that, in an uncontested election, directors
shall be elected by holders of a majority of the votes cast at any
meeting for the election of directors at which a quorum is present.\4\
Under the majority voting standard, a nominee who fails to receive the
requisite vote will not be duly
[[Page 23828]]
elected to the Board. The By-Laws require that any incumbent nominee,
as a condition to his or her nomination for election, must submit in
writing an irrevocable resignation, the effectiveness of which is
conditioned upon the director's failure to receive the requisite vote
in any uncontested election and the Board's acceptance of the
resignation. The resignation will be considered by the Nominating &
Governance Committee and acted upon by the Board in the same manner
described above.\5\ Acceptance of that resignation by the Board shall
be in accordance with the policies and procedures adopted by the Board
for such purpose. NASDAQ OMX specifies its policies and procedures
pertaining to the election of its directors in its By-Laws.
Specifically, the policies and procedures for the acceptance of the
resignation of a director, by the Board, are proposed to be specified
in By-Law Article IV, Section 4.4. There are no additional policies and
procedures other than what is indicated in the By-Laws. In the event
that NASDAQ OMX proposes to further amend its By-Laws with respect to
the election of directors, including the adoption of any policies and
procedure with respect to such election, NASDAQ OMX shall file a
proposed rule change with the Commission to seek approval of those
amendments.
---------------------------------------------------------------------------
\4\ NASDAQ OMX also amended its Corporate Governance Guidelines
to reflect the majority vote standard for uncontested director
elections.
\5\ See NASDAQ OMX By-Law Article IV, Section 4.5.
---------------------------------------------------------------------------
Contested Election
NASDAQ OMX codified its process for a contested election. The
directors will continue to be elected by a plurality vote in a
contested election. There is no change to the process for contested
elections because if a majority voting standard were to apply in a
contested election, the likelihood of a ``failed election'' (i.e., a
situation in which no director receives the requisite vote) would be
more pronounced. Moreover, the rationale underpinning the majority
voting policy does not apply in contested elections where stockholders
are offered a choice among competing candidates. Directors are elected
by a plurality of votes present in person or represented by proxy at a
meeting. The directors who receive the greatest number of votes cast
for election of directors at the meeting will be elected.
General Election Requirements
The following applies to elections of directors and were not
amended. Each share of common stock has one vote,\6\ subject to the
voting limitation in NASDAQ OMX's certificate of incorporation that
generally prohibits a holder from voting in excess of 5% of the total
voting power of NASDAQ OMX.\7\ In addition, each note holder is
entitled to the number of votes equal to the number of shares of common
stock into which such note could be converted on the record date,
subject to the 5% voting limitation contained in the certificate of
incorporation.
---------------------------------------------------------------------------
\6\ See NASDAQ OMX Certificate of Incorporation at Article IV,
C.1(a).
\7\ See NASDAQ OMX Certificate of Incorporation at Article IV,
C.1(b)2.
---------------------------------------------------------------------------
The presence of owners of a majority (greater than 50%) of the
votes entitled to be cast by holder of NASDAQ OMX voting securities
constitutes a quorum. Presence may be in person or by proxy. Any
securities not voted, by abstention, will not impact the vote.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\8\ in general, and with
Sections 6(b)(1) and (b)(5) of the Act,\9\ in particular, in that the
proposal enables the 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 mechanism of a
free and open market and a national market system, and, in general, to
protect investors and the public interest. The proposed amendments
adopting a majority vote standard would enable the directors to be
elected in a manner reflective of the desires of shareholders and
provide a mechanism to protect against the election of directors by
less than a majority vote of the shareholders.
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\8\ 15 U.S.C. 78f.
\9\ 15 U.S.C. 78f(b)(2)[sic], (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 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 after the date of the filing, or such
shorter time as the Commission may designate, if consistent with the
protection of investors and the public interest, it has become
effective pursuant to 19(b)(3)(A) of the Act \10\ and Rule 19b-4(f)(6)
\11\ thereunder.
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\10\ 15 U.S.C. 78s(b)(3)(A).
\11\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file 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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The Exchange has noted that the proposed rule change is identical
to a proposed rule change recently approved by the Commission with
respect to the NASDAQ Exchange \12\ and has requested that the
Commission waive the 30-day operative delay to ensure that NASDAQ OMX
is able to implement the proposed rule change without undue delay. The
Commission has determined that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest
because such waiver will enable NASDAQ OMX to implement the proposed
rule change without undue delay in a manner consistent with a proposed
rule change previously approved by the Commission.\13\ Therefore, the
Commission designates the proposal operative upon filing.\14\
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\12\ See Securities Exchange Act Release No. 61876 (April 8,
2010), 75 FR 19436 (April 14, 2010) (SR-NASDAQ-2010-025).
\13\ Id.
\14\ For purposes only of waiving the 30-day operative delay,
the Commission 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 may summarily abrogate 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.
[[Page 23829]]
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 rule-comments@sec.gov. Please include
File Number SR-BX-2010-029 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-BX-2010-029. 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 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; 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-BX-2010-029 and should be submitted on or before May 25,
2010.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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\15\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010-10309 Filed 5-3-10; 8:45 am]
BILLING CODE 8010-01-P
