Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Amendments to the NASDAQ OMX Group, Inc.'s By-Laws, 24934-24936 [2011-10650]

Download as PDF 24934 Federal Register / Vol. 76, No. 85 / Tuesday, May 3, 2011 / Notices This meeting will be webcast live at the Web address—https://www.nrc.gov. Week of May 16, 2011—Tentative There are no meetings scheduled for the week of May 16, 2011. Week of May 23, 2011—Tentative Friday, May 27, 2011 9 a.m. Briefing on Results of the Agency Action Review Meeting (AARM) (Public Meeting). (Contact: Rani Franovich, 301–415–1868.) This meeting will be webcast live at the Web address—https://www.nrc.gov. Week of May 30, 2011—Tentative william.dosch@nrc.gov. Determinations on requests for reasonable accommodation will be made on a caseby-case basis. This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301–415–1969), or send an e-mail to darlene.wright@nrc.gov. SECURITIES AND EXCHANGE COMMISSION Dated: April 28, 2011. Rochelle C. Bavol, Policy Coordinator, Office of the Secretary. April 27, 2011. [FR Doc. 2011–10858 Filed 4–29–11; 4:15 pm] Thursday, June 2, 2011 BILLING CODE 7590–01–P 9:30 a.m. Briefing on Human Capital and Equal Employment Opportunity (EEO) (Public Meeting). (Contact: Susan Salter, 301–492–2206.) This meeting will be webcast live at the Web address—https://www.nrc.gov. SECURITIES AND EXCHANGE COMMISSION Week of June 6, 2011—Tentative [File No. 500–1] Monday, June 6, 2011 Magnum d’Or Resources, Inc.; Order of Suspension of Trading 10 a.m. Meeting with the Advisory Committee on Reactor Safeguards (ACRS) (Public Meeting). (Contact: Tanny Santos, 301–415–7270.) This meeting will be webcast live at the Web address—https://www.nrc.gov. Week of June 13, 2011—Tentative srobinson on DSKHWCL6B1PROD with NOTICES Thursday, June 16, 2011 9:30 a.m. Briefing on the Progress of the Task Force Review of NRC Processes and Regulations Following Events in Japan (Public Meeting). (Contact: Nathan Sanfilippo, 301– 415–3951.) This meeting will be webcast live at the Web address—https://www.nrc.gov. *The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415–1292. Contact person for more information: Rochelle Bavol, (301) 415–1651. The NRC Commission Meeting Schedule can be found on the Internet at: https://www.nrc.gov/public-involve/ public-meetings/schedule.html. The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify Bill Dosch, Chief, Work Life and Benefits Branch, at 301–415–6200, TDD: 301– 415–2100, or by e-mail at VerDate Mar<15>2010 20:39 May 02, 2011 Jkt 223001 April 29, 2011. It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Magnum d’Or Resources, Inc. (‘‘Magnum’’) because of questions regarding the accuracy of assertions by Magnum in its Web site and in press releases to investors concerning, among other things: (1) The company’s current financial condition; and (2) the company’s current operations. The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities in the above-listed company is suspended for the period from 9:30 a.m. EDT on April 29, 2011, through 11:59 p.m. EDT, on May 12, 2011. By the Commission. Jill M. Peterson, Assistant Secretary. [FR Doc. 2011–10850 Filed 4–29–11; 4:15 pm] BILLING CODE 8011–01–P PO 00000 [Release No. 34–64345; File No. SR–BX– 2011–022] Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Amendments to the NASDAQ OMX Group, Inc.’s By-Laws 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 April 14, 2011, NASDAQ OMX BX, Inc. (‘‘BX’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I and II, 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 rule change related 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. 1 15 2 17 Frm 00087 Fmt 4703 Sfmt 4703 U.S.C. 78s(b)(1). CFR 240.19b–4. E:\FR\FM\03MYN1.SGM 03MYN1 Federal Register / Vol. 76, No. 85 / Tuesday, May 3, 2011 / Notices A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose srobinson on DSKHWCL6B1PROD with NOTICES NASDAQ OMX recently made certain clarifying amendments to its By-Laws.3 Specifically, the recently approved NASDAQ OMX rule change: (i) Amended the name of the Nominating Committee to the Nominating & Governance Committee; (ii) amended the Phlx reference to reflect a recent conversion to a limited liability company; and (iii) clarified By-Law Article IV, Section 4.4 that broker nonvotes are not counted as a vote cast either ‘‘for’’ or ‘‘against’’ a Director in an uncontested election.4 NASDAQ OMX By-Laws previously provided for a Nominating Committee which is appointed pursuant to the ByLaws. In addition to the responsibilities listed in By-Law Article IV, Section 4.13(h), the Nominating Committee also conducts certain governance functions such as consulting with the Board and the management to determine the characteristics, skills and experience desired for the Board as a whole and for its individual members, overseeing the annual director evaluation, and reviewing the overall effectiveness of the Board. Accordingly, NASDAQ OMX renamed and changed all references to the ‘‘Nominating Committee’’ in the ByLaws, to the ‘‘Nominating & Governance Committee’’ so that the title of the committee accurately reflects all of its current functions, including those that are deemed governance functions. The proposal to rename the Nominating Committee did not change the function of the committee, but was intended to clarify the current functions and its governance role with respect to the Board selection process. Additionally, NASDAQ OMX amended Article 1, Section (o) of NASDAQ OMX’s By-Laws to change the reference to ‘‘NASDAQ OMX PHLX, Inc.’’ to ‘‘NASDAQ OMX PHLX LLC’’ to reflect a recently filed rule change by NASDAQ OMX PHLX from a Delaware corporation to a Delaware limited liability company.5 Finally, NASDAQ OMX added the words ‘‘and broker nonvotes’’ to 3 See Securities Exchange Act Release No. 64285 (April 8, 2011) (SR–NASDAQ–2011–025) (‘‘Approval Order’’). SR–NASDAQ–2011–025 was filed by NASDAQ Stock Market LLC on behalf of NASDAQ OMX to amend the By-Laws of its parent corporation. 4 Id. 5 See Securities Exchange Act Release No. 62783 (August 27, 2010), 75 FR 54204 (September 3, 2010) (SR–Phlx–2010–104). VerDate Mar<15>2010 20:39 May 02, 2011 Jkt 223001 NASDAQ OMX’s By-Law Article IV, Section 4.4 to make clear that broker nonvotes will not be counted as a vote cast either ‘‘for’’ or ‘‘against’’ that director’s election. In its filing to amend NASDAQ OMX’s By-Laws, NASDAQ Stock Market LLC noted that NASDAQ OMX’s past practice has been to not count a broker nonvote as a vote cast either for or against a director’s election.6 Accordingly, this change clarifies this practice by codifying it into the By-Laws, especially in light of NASDAQ OMX’s recent change to a majority vote standard in the uncontested election of directors. In 2010, NASDAQ OMX amended its By-Laws to state that in an uncontested election, a majority voting standard would apply to the election of its directors, requiring directors to be elected by the holders of a majority of the votes cast at any meeting for the election of directors at which a quorum is present in an uncontested election.7 A plurality standard would still remain in a contested election. While in its filing to amend NASDAQ OMX’s By-Laws, NASDAQ Stock Market LLC noted that it has always been NASDAQ OMX’s practice to not count broker nonvotes ‘‘for’’ or ‘‘against’’ in director elections, as the Commission noted in its Approval Order the impact of the broker nonvote and how such votes are counted will take on added significance under NASDAQ OMX’s newly adopted majority vote standard for director elections. Although in its filing NASDAQ Stock Market LLC stated that under Delaware case law,8 broker nonvotes are not considered as votes cast for or against a proposal or director nominee, the Exchange proposes the change for clarity and transparency purposes. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,9 in general, and with Sections 6(b)(1) and 6(b)(5) of the Act,10 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, the rules and regulations thereunder, and self-regulatory organization rules, and is designed to 6 See Securities Exchange Act Release No. 63925 (February 17, 2011), 76 FR 10418 (February 24, 2011) (SR–NASDAQ–2011–025). 7 See Securities Exchange Act Release No. 63925 [sic] (April 8, 2010), 75 FR 19436 (April 14, 2010) (SR–NASDAQ–2010–025). 8 See Berlin v. Emerald Partners, 552 A.2d 482 494 (Del Supr. 1988). 9 15 U.S.C. 78f. 10 15 U.S.C. 78f(b)(1), (5). PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 24935 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 Exchange believes changing the name of the Nominating Committee to the Nominating and Governance Committee and amending references to an exchange name to reflect a corporate change to a limited liability company are both clarifying in nature. The changes will ensure that the committee’s title accurately reflects its functions and will ensure that the ByLaws accurately and properly reflect an exchange entity name. As discussed above, the amendment that broker nonvotes will not be counted as a vote either ‘‘for’’ or ‘‘against’’ in director elections will codify NASDAQ OMX’s past practice, providing clarity and transparency. Accordingly the Exchange believes that the amendments are consistent with investor protection and the public interest. 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 The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act 11 and Rule 19b–4(f)(6) thereunder.12 Because the 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 prior to 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the 11 15 12 17 E:\FR\FM\03MYN1.SGM U.S.C. 78s(b)(3)(A)(iii). CFR 240.19b–4(f)(6). 03MYN1 24936 Federal Register / Vol. 76, No. 85 / Tuesday, May 3, 2011 / Notices proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b–4(f)(6) (iii) thereunder. A proposed rule change filed under Rule 19b–4(f)(6) 13 normally does not become operative prior to 30 days after the date of the filing. However, pursuant to Rule 19b4(f)(6)(iii),14 the Commission may designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has requested that the Commission waive the 30-day operative delay to ensure that NASDAQ OMX is able to implement the rule changes. The Commission finds that waiver of the operative delay is consistent with the protection of investors and the public interest. The Commission notes in waiving the 30-day operative delay that the Commission published for comment in the Federal Register the initial filing to amend NASDAQ OMX’s By-Laws, did not receive any comments,15 and subsequently approved the proposed rule change.16 Further, the Commission notes that the Exchange’s proposal is identical to the proposed rule change previously approved by the Commission.17 Accordingly, the Commission finds that it is consistent with investor protection and the public interest to waive the 30day operative delay in accordance with 19b–4(f)(6)(iii) so that NASDAQ OMX’s By-Laws can be effective without undue delay, and therefore designates the proposal operative upon filing.18 At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. srobinson on DSKHWCL6B1PROD with NOTICES IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, 13 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 4(f)(6)(iii) requires that a self-regulatory organization submit to the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the filing of the proposed rule change, or such shorter time as designated by the Commission. The Commission notes that the Exchange has satisfied this requirement. 14 17 CFR 240.19b–4(f)(6)(iii). 15 See supra note 6. 16 See supra note 3. 17 Id. 18 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). VerDate Mar<15>2010 20:39 May 02, 2011 Jkt 223001 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 Number SR–BX–2011–022 on the subject line. SECURITIES AND EXCHANGE COMMISSION [Release No. 34–64357; File No. SR– NYSEArca–2011–18] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change To List and Trade the Meidell Tactical Advantage ETF April 28, 2011. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’ or ‘‘Exchange Act’’) 1 and Rule 19b–4 Paper Comments thereunder,2 notice is hereby given that • Send paper comments in triplicate on April 15, 2011, NYSE Arca, Inc. to Elizabeth M. Murphy, Secretary, (‘‘Exchange’’ or ‘‘NYSE Arca’’) filed with Securities and Exchange Commission, the Securities and Exchange 100 F Street, NE., Washington, DC Commission (‘‘Commission’’) the 20549–1090. proposed rule change as described in All submissions should refer to File Items I and II below, which Items have Number SR–BX–2011–022. This file been prepared by the Exchange. The number should be included on the Commission is publishing this notice to subject line if e-mail is used. To help the solicit comments on the proposed rule Commission process and review your change from interested persons. comments more efficiently, please use I. Self-Regulatory Organization’s only one method. The Commission will Statement of the Terms of Substance of post all comments on the Commission’s the Proposed Rule Change Internet Web site (https://www.sec.gov/ The Exchange proposes to list and rules/sro.shtml). Copies of the trade the following under NYSE Arca submission, all subsequent Equities Rule 8.600 (‘‘Managed Fund amendments, all written statements Shares’’): The Meidell Tactical with respect to the proposed rule Advantage ETF. The text of the change that are filed with the proposed rule change is available at the Commission, and all written Exchange, the Commission’s Public communications relating to the Reference Room, and https:// proposed rule change between the Commission and any person, other than www.nyse.com. those that may be withheld from the II. Self-Regulatory Organization’s public in accordance with the Statement of the Purpose of, and provisions of 5 U.S.C. 552, will be Statutory Basis for, the Proposed Rule available for Web site viewing and Change printing in the Commission’s Public In its filing with the Commission, the Reference Room, 100 F Street, NE., self-regulatory organization included Washington, DC 20549, on official statements concerning the purpose of, business days between the hours of 10 and basis for, the proposed rule change a.m. and 3 p.m. Copies of such filing also will be available for inspection and and discussed any comments it received on the proposed rule change. The text copying at the principal office of the of those statements may be examined at Exchange. All comments received will the places specified in Item IV below. be posted without change; the The Exchange has prepared summaries, Commission does not edit personal set forth in sections A, B, and C below, identifying information from of the most significant parts of such submissions. You should submit only statements. information that you wish to make available publicly. All submissions A. Self-Regulatory Organization’s should refer to File No. SR–BX–2011– Statement of the Purpose of, and 022 and should be submitted on or Statutory Basis for, the Proposed Rule before May 24, 2011. Change For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.19 Cathy H. Ahn, Deputy Secretary. [FR Doc. 2011–10650 Filed 5–2–11; 8:45 am] BILLING CODE 8011–01–P 19 17 PO 00000 Fmt 4703 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 A Managed Fund Share is a security that represents an interest in an investment company 2 17 CFR 200.30–3(a)(12). Frm 00089 1. Purpose The Exchange proposes to list and trade the following Managed Fund Shares 3 (‘‘Shares’’) under NYSE Arca Sfmt 4703 E:\FR\FM\03MYN1.SGM 03MYN1

Agencies

[Federal Register Volume 76, Number 85 (Tuesday, May 3, 2011)]
[Notices]
[Pages 24934-24936]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10650]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-64345; File No. SR-BX-2011-022]


Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change Relating 
to Amendments to the NASDAQ OMX Group, Inc.'s By-Laws

April 27, 2011.
    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 April 14, 2011, NASDAQ OMX BX, Inc. (``BX'' or ``Exchange'') filed 
with the Securities and Exchange Commission (``Commission'') the 
proposed rule change as described in Items I and II, 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 rule change related 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.

[[Page 24935]]

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

1. Purpose
    NASDAQ OMX recently made certain clarifying amendments to its By-
Laws.\3\ Specifically, the recently approved NASDAQ OMX rule change: 
(i) Amended the name of the Nominating Committee to the Nominating & 
Governance Committee; (ii) amended the Phlx reference to reflect a 
recent conversion to a limited liability company; and (iii) clarified 
By-Law Article IV, Section 4.4 that broker nonvotes are not counted as 
a vote cast either ``for'' or ``against'' a Director in an uncontested 
election.\4\
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 64285 (April 8, 
2011) (SR-NASDAQ-2011-025) (``Approval Order''). SR-NASDAQ-2011-025 
was filed by NASDAQ Stock Market LLC on behalf of NASDAQ OMX to 
amend the By-Laws of its parent corporation.
    \4\ Id.
---------------------------------------------------------------------------

    NASDAQ OMX By-Laws previously provided for a Nominating Committee 
which is appointed pursuant to the By-Laws. In addition to the 
responsibilities listed in By-Law Article IV, Section 4.13(h), the 
Nominating Committee also conducts certain governance functions such as 
consulting with the Board and the management to determine the 
characteristics, skills and experience desired for the Board as a whole 
and for its individual members, overseeing the annual director 
evaluation, and reviewing the overall effectiveness of the Board. 
Accordingly, NASDAQ OMX renamed and changed all references to the 
``Nominating Committee'' in the By-Laws, to the ``Nominating & 
Governance Committee'' so that the title of the committee accurately 
reflects all of its current functions, including those that are deemed 
governance functions. The proposal to rename the Nominating Committee 
did not change the function of the committee, but was intended to 
clarify the current functions and its governance role with respect to 
the Board selection process.
    Additionally, NASDAQ OMX amended Article 1, Section (o) of NASDAQ 
OMX's By-Laws to change the reference to ``NASDAQ OMX PHLX, Inc.'' to 
``NASDAQ OMX PHLX LLC'' to reflect a recently filed rule change by 
NASDAQ OMX PHLX from a Delaware corporation to a Delaware limited 
liability company.\5\
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 62783 (August 27, 
2010), 75 FR 54204 (September 3, 2010) (SR-Phlx-2010-104).
---------------------------------------------------------------------------

    Finally, NASDAQ OMX added the words ``and broker nonvotes'' to 
NASDAQ OMX's By-Law Article IV, Section 4.4 to make clear that broker 
nonvotes will not be counted as a vote cast either ``for'' or 
``against'' that director's election. In its filing to amend NASDAQ 
OMX's By-Laws, NASDAQ Stock Market LLC noted that NASDAQ OMX's past 
practice has been to not count a broker nonvote as a vote cast either 
for or against a director's election.\6\ Accordingly, this change 
clarifies this practice by codifying it into the By-Laws, especially in 
light of NASDAQ OMX's recent change to a majority vote standard in the 
uncontested election of directors.
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 63925 (February 17, 
2011), 76 FR 10418 (February 24, 2011) (SR-NASDAQ-2011-025).
---------------------------------------------------------------------------

    In 2010, NASDAQ OMX amended its By-Laws to state that in an 
uncontested election, a majority voting standard would apply to the 
election of its directors, requiring directors to be elected by the 
holders of a majority of the votes cast at any meeting for the election 
of directors at which a quorum is present in an uncontested 
election.\7\ A plurality standard would still remain in a contested 
election. While in its filing to amend NASDAQ OMX's By-Laws, NASDAQ 
Stock Market LLC noted that it has always been NASDAQ OMX's practice to 
not count broker nonvotes ``for'' or ``against'' in director elections, 
as the Commission noted in its Approval Order the impact of the broker 
nonvote and how such votes are counted will take on added significance 
under NASDAQ OMX's newly adopted majority vote standard for director 
elections. Although in its filing NASDAQ Stock Market LLC stated that 
under Delaware case law,\8\ broker nonvotes are not considered as votes 
cast for or against a proposal or director nominee, the Exchange 
proposes the change for clarity and transparency purposes.
---------------------------------------------------------------------------

    \7\ See Securities Exchange Act Release No. 63925 [sic] (April 
8, 2010), 75 FR 19436 (April 14, 2010) (SR-NASDAQ-2010-025).
    \8\ See Berlin v. Emerald Partners, 552 A.2d 482 494 (Del Supr. 
1988).
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6 of the Act,\9\ in general, and with 
Sections 6(b)(1) and 6(b)(5) of the Act,\10\ 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, 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.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78f.
    \10\ 15 U.S.C. 78f(b)(1), (5).
---------------------------------------------------------------------------

    The Exchange believes changing the name of the Nominating Committee 
to the Nominating and Governance Committee and amending references to 
an exchange name to reflect a corporate change to a limited liability 
company are both clarifying in nature. The changes will ensure that the 
committee's title accurately reflects its functions and will ensure 
that the By-Laws accurately and properly reflect an exchange entity 
name. As discussed above, the amendment that broker nonvotes will not 
be counted as a vote either ``for'' or ``against'' in director 
elections will codify NASDAQ OMX's past practice, providing clarity and 
transparency. Accordingly the Exchange believes that the amendments are 
consistent with investor protection and the public interest.

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

    The Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \11\ and Rule 19b-4(f)(6) thereunder.\12\ 
Because the 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 prior to 
30 days from the date on which it was filed, or such shorter time as 
the Commission may designate, if consistent with the protection of 
investors and the public interest, the

[[Page 24936]]

proposed rule change has become effective pursuant to Section 
19(b)(3)(A) of the Act and Rule 19b-4(f)(6) (iii) thereunder.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \12\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) \13\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b4(f)(6)(iii),\14\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange has 
requested that the Commission waive the 30-day operative delay to 
ensure that NASDAQ OMX is able to implement the rule changes.
---------------------------------------------------------------------------

    \13\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) 
requires that a self-regulatory organization submit to the 
Commission written notice of its intent to file the proposed rule 
change, along with a brief description and text of the proposed rule 
change, at least five business days prior to the filing of the 
proposed rule change, or such shorter time as designated by the 
Commission. The Commission notes that the Exchange has satisfied 
this requirement.
    \14\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

    The Commission finds that waiver of the operative delay is 
consistent with the protection of investors and the public interest. 
The Commission notes in waiving the 30-day operative delay that the 
Commission published for comment in the Federal Register the initial 
filing to amend NASDAQ OMX's By-Laws, did not receive any comments,\15\ 
and subsequently approved the proposed rule change.\16\ Further, the 
Commission notes that the Exchange's proposal is identical to the 
proposed rule change previously approved by the Commission.\17\ 
Accordingly, the Commission finds that it is consistent with investor 
protection and the public interest to waive the 30-day operative delay 
in accordance with 19b-4(f)(6)(iii) so that NASDAQ OMX's By-Laws can be 
effective without undue delay, and therefore designates the proposal 
operative upon filing.\18\
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    \15\ See supra note 6.
    \16\ See supra note 3.
    \17\ Id.
    \18\ 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 such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act.

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-2011-022 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-2011-022. 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, 100 F Street, NE., 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 p.m. Copies of such filing also will be available for 
inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File No. SR-BX-2011-022 and should be 
submitted on or before May 24, 2011.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-10650 Filed 5-2-11; 8:45 am]
BILLING CODE 8011-01-P
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