81 FR 69127 - Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing of Proposed Rule Change To Amend the By-Laws of Nasdaq, Inc. To Implement Proxy Access
SECURITIES AND EXCHANGE COMMISSION Federal Register Volume 81, Issue 193 (October 5, 2016)
Federal Register Volume 81, Issue 193 (October 5, 2016)
| Page Range | 69127-69133 | |
| FR Document | 2016-24002 |
[Federal Register Volume 81, Number 193 (Wednesday, October 5, 2016)] [Notices] [Pages 69127-69133] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-24002] [[Page 69127]] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-78980; File No. SR-ISEMercury-2016-16] Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing of Proposed Rule Change To Amend the By-Laws of Nasdaq, Inc. To Implement Proxy Access September 29, 2016. 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 September 15, 2016, ISE Mercury, LLC (``ISE Mercury'') or ``Exchange'') filed with the Securities and Exchange Commission (``SEC'' or ``Commission'') the proposed rule change as described in Items I, II, and III, below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. --------------------------------------------------------------------------- I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange is filing this proposed rule change with respect to amendments of the By-Laws (the ``By-Laws'') of its parent corporation, Nasdaq, Inc. (``Nasdaq'' or the ``Company''), to implement proxy access. The proposed amendments will be implemented on a date designated by the Company following approval by the Commission. The text of the proposed rule change is available on the Exchange's Web site at www.ise.com, at the principal office of the Exchange, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose Background At Nasdaq's 2016 annual meeting held on May 5, 2016, Nasdaq's stockholders considered a stockholder proposal submitted under Rule 14a-8 under the Act.\3\ The proposal, which passed with 73.52% of the votes cast, requested that Nasdaq's Board of Directors (the ``Board'') take steps to implement a ``proxy access'' by-law. Proxy access by-laws allow a stockholder, or group of stockholders, who comply with certain requirements, to nominate candidates for service on a board and have those candidates included in a company's proxy materials. Such provisions allow stockholders to nominate candidates without undertaking the expense of a proxy solicitation. --------------------------------------------------------------------------- \3\ See 17 CFR 240.14a-8, which establishes procedures pursuant to which stockholders of a public company may have their proposals placed alongside management's proposals in the company's proxy materials for presentation to a vote at a meeting of stockholders. --------------------------------------------------------------------------- Following the 2016 annual meeting, the Nominating & Governance Committee (the ``Committee'') of the Board and the Board reviewed the voting results on the stockholder proposal and discussed proxy access generally. The Committee ultimately recommended to the Board, and the Board approved, certain changes to Nasdaq's By-Laws to implement proxy access. Nasdaq now proposes to make these changes by adopting new Section 3.6 of the By-Laws and making certain conforming changes to current Sections 3.1, 3.3 and 3.5 of the By-Laws, all of which are described further below. In developing its proposal, Nasdaq has generally tried to balance the relative weight of arguments for and against proxy access provisions. On the one hand, Nasdaq recognizes the significance of this issue to some investors, who see proxy access as an important accountability mechanism that allows them to participate in board elections through the nomination of stockholder candidates that are presented in a company's proxy statement. On the other hand, Nasdaq's proposed proxy access provision includes certain procedural requirements that ensure, among other things, that the Company and its stockholders will have full and accurate information about nominating stockholders and their nominees and that such stockholders and nominees will comply with applicable laws, regulations and other requirements. Proposed Section 3.6(a) of the By-Laws To respond to feedback from its stockholders, Nasdaq proposes to amend its By-Laws to, as set forth in the first sentence of proposed Section 3.6(a), require the Company to include in its proxy statement, its form proxy and any ballot distributed at the stockholder meeting, the name of, and certain Required Information \4\ about, any person nominated for election (the ``Stockholder Nominee'') to the Board by a stockholder or group of stockholders (the ``Eligible Stockholder'') \5\ that satisfies the requirements set forth in the proxy access provision of Nasdaq's By-Laws.\6\ To utilize this provision, the Eligible Stockholder must expressly elect at the time of providing a required notice to the Company of the proxy access nomination (the ``Notice of Proxy Access Nomination'') to have its nominee included in the Company's proxy materials. Stockholders will be eligible to submit proxy access nominations only at annual meetings of stockholders when the Board solicits proxies with respect to the election of directors. --------------------------------------------------------------------------- \4\ The Required Information is the information provided to Nasdaq's Corporate Secretary about the Stockholder Nominee and the Eligible Stockholder that is required to be disclosed in the Company's proxy statement by the regulations promulgated under the Act, and if the Eligible Stockholder so elects, a written statement, not to exceed 500 words, in support of the Stockholder Nominee(s)' candidacy (the ``Statement''). \5\ As used throughout Nasdaq's By-Laws, the term ``Eligible Stockholder'' includes each member of a stockholder group that submits a proxy access nomination to the extent the context requires. \6\ When the Company includes proxy access nominees in the proxy materials, such individuals will be included in addition to any persons nominated for election to the Board or any committee thereof. --------------------------------------------------------------------------- The next two sentences of Section 3.6(a) provide some additional clarification on the term ``Eligible Stockholder.'' First, in calculating the number of stockholders in a group seeking to qualify as an Eligible Stockholder, two or more of the following types of funds shall be counted as one stockholder: (i) Funds under common management and investment control, (ii) funds under common management and funded primarily by the same employer, or (iii) funds that are a ``group of investment companies'' as such term is defined in Section 12(d)(1)(G)(ii) of the Investment Company Act of 1940, as amended.\7\ [[Page 69128]] Nasdaq views this as a stockholder-friendly provision that will make it easier for such funds to participate in a proxy access nomination since they will not have to comply with the procedural requirements in the proxy access provision multiple times. Second, in the event that the Eligible Stockholder consists of a group of stockholders, any and all requirements and obligations for an individual Eligible Stockholder shall apply to each member of the group, except that the Required Ownership Percentage (discussed further below) shall apply to the ownership of the group in the aggregate. Generally, the applicable requirements and obligations relate to information that each member of the nominating group must provide to Nasdaq about itself, as discussed further below. Nasdaq believes it is reasonable to require each member of the nominating group to provide such information so that both the Company and its stockholders are fully informed about the entire group making the proxy access nomination. --------------------------------------------------------------------------- \7\ See 15 U.S.C. 80a-12(d)(1)(G)(ii), which defines ``group of investment companies'' as any two or more registered investment companies that hold themselves out to investors as related companies for purposes of investment and investor services. --------------------------------------------------------------------------- The final sentence of proposed Section 3.6(a) allows Nasdaq to omit from its proxy materials any information or Statement (or portion thereof) that it, in good faith, believes is untrue in any material respect (or omits to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading) or would violate any applicable law or regulation. This provision allows Nasdaq to comply with Rule 14a-9 under the Act \8\ and to protect its stockholders from information that is materially untrue or that violates any law or regulation. The final sentence of proposed Section 3.6(a) also explicitly allows Nasdaq to solicit against, and include in the proxy statement its own statement relating to, any Stockholder Nominee. This provision merely clarifies that just because Nasdaq must include a proxy access nominee in its proxy materials if the proxy access provisions are satisfied, Nasdaq does not necessarily have to support that nominee. --------------------------------------------------------------------------- \8\ See 17 CFR 240.14a-9, which generally prohibits proxy solicitations that contain any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading. --------------------------------------------------------------------------- Proposed Section 3.6(b) of the By-Laws Proposed Section 3.6(b) of the By-Laws establishes the deadline for a timely Notice of Proxy Access Nomination. Specifically, such a notice must be addressed to, and received by, Nasdaq's Corporate Secretary no earlier than one hundred fifty (150) days and no later than one hundred twenty (120) days before the anniversary of the date that Nasdaq issued its proxy statement for the previous year's annual meeting of stockholders. The Company believes this notice period will provide stockholders an adequate window to submit nominees via proxy access, while also providing the Company adequate time to diligence [sic] a proxy access nominee before including them in the proxy statement for the next annual meeting of stockholders. Proposed Section 3.6(c) of the By-Laws Proposed Section 3.6(c) specifies that the maximum number of Stockholder Nominees nominated by all Eligible Stockholders that will be included in Nasdaq's proxy materials with respect to an annual meeting of stockholders shall not exceed the greater of two and 25% of the total number of directors in office (rounded down to the nearest whole number) as of the last day on which a Notice of Proxy Access Nomination may be delivered pursuant to and in accordance with the proxy access provision of the By-Laws (the ``Final Proxy Access Nomination Date''). In the event that one or more vacancies for any reason occurs after the Final Proxy Access Nomination Date but before the date of the annual meeting and the Board resolves to reduce the size of the Board in connection therewith, the maximum number of Stockholder Nominees included in Nasdaq's proxy materials shall be calculated based on the number of directors in office as so reduced. Any individual nominated by an Eligible Stockholder for inclusion in the proxy materials pursuant to the proxy access provision of the By- Laws whom the Board decides to nominate as a nominee of the Board, and any individual nominated by an Eligible Stockholder for inclusion in the proxy materials pursuant to the proxy access provision but whose nomination is subsequently withdrawn, shall be counted as one of the Stockholder Nominees for purposes of determining when the maximum number of Stockholder Nominees has been reached. Any Eligible Stockholder submitting more than one Stockholder Nominee for inclusion in the proxy materials shall rank such Stockholder Nominees based on the order that the Eligible Stockholder desires such Stockholder Nominees to be selected for inclusion in the proxy statement in the event that the total number of Stockholder Nominees submitted by Eligible Stockholders pursuant to the proxy access provision exceeds the maximum number of nominees allowed. In the event that the number of Stockholder Nominees submitted by Eligible Stockholders exceeds the maximum number of nominees allowed, the highest ranking Stockholder Nominee who meets the requirements of the proxy access provision of the By-Laws from each Eligible Stockholder will be selected for inclusion in the proxy materials until the maximum number is reached, going in order of the amount (largest to smallest) of shares of Nasdaq's outstanding common stock each Eligible Stockholder disclosed as owned in its respective Notice of Proxy Access Nomination submitted to Nasdaq. If the maximum number is not reached after the highest ranking Stockholder Nominee who meets the requirements of the proxy access provision of the By-Laws from each Eligible Stockholder has been selected, this process will continue as many times as necessary, following the same order each time, until the maximum number is reached. Following such determination, if any Stockholder Nominee who satisfies the eligibility requirements thereafter is nominated by the Board, or is not included in the proxy materials or is not submitted for election as a director, in either case, as a result of the Eligible Stockholder becoming ineligible or withdrawing its nomination, the Stockholder Nominee becoming unwilling or unable to serve on the Board or the Eligible Stockholder or the Stockholder Nominee failing to comply with the proxy access provision of the By-Laws, no other nominee or nominees shall be included in the proxy materials or otherwise submitted for director election in substitution thereof. The Company believes it is reasonable to limit the Board seats available to proxy access nominees, to establish procedures for selecting candidates if the nominee limit is exceeded and to exclude further proxy access nominees in the cases set forth above. The limitation on Board seats available to proxy access nominees ensures that proxy access cannot be used to take over the entire Board, which is not the stated purpose of proxy access campaigns. The procedures for selecting candidates if the nominee limit is exceeded establish clear and rational guidelines for an orderly nomination process to avoid the Company having to make arbitrary judgments among candidates. Finally, the exclusion of further proxy access nominees in certain cases will avoid further time and expense to the Company when the proxy access [[Page 69129]] nominee has been nominated by the Board, in which case the goal of the proxy access nomination has been achieved, or in certain cases when the Eligible Stockholder or Stockholder Nominee is at fault. Proposed Section 3.6(d) of the By-Laws Proposed Section 3.6(d) clarifies, for the avoidance of doubt, how ``ownership'' will be defined for purposes of meeting the Required Ownership Percentage (discussed further below). Specifically, an Eligible Stockholder shall be deemed to ``own'' only those outstanding shares of Nasdaq's common stock as to which the stockholder possesses both: (i) The full voting and investment rights pertaining to the shares; and (ii) the full economic interest in (including the opportunity for profit from and risk of loss on) such shares; provided that the number of shares calculated in accordance with clauses (i) and (ii) shall not include any shares:Sold by such stockholder or any of its affiliates in any transaction that has not been settled or closed, including any short sale; borrowed by such stockholder or any of its affiliates for any purposes or purchased by such stockholder or any of its affiliates pursuant to an agreement to resell; or subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into by such stockholder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of shares of Nasdaq's outstanding common stock, in any such case which instrument or agreement has, or is intended to have, or if exercised by either party would have, the purpose or effect of: [cir] Reducing in any manner, to any extent or at any time in the future, such stockholder's or its affiliates' full right to vote or direct the voting of any such shares; and/or [cir] hedging, offsetting or altering to any degree any gain or loss realized or realizable from maintaining the full economic ownership of such shares by such stockholder or its affiliates. Further, a stockholder shall ``own'' shares held in the name of a nominee or other intermediary so long as the stockholder retains the right to instruct how the shares are voted with respect to the election of directors and possesses the full economic interest in the shares. A stockholder's ownership of shares shall be deemed to continue during any period in which the stockholder has delegated any voting power by means of a proxy, power of attorney or other instrument or arrangement which is revocable at any time by the stockholder. A stockholder's ownership of shares shall be deemed to continue during any period in which the stockholder has loaned such shares provided that the stockholder has the power to recall such loaned shares on three (3) business days' notice, has recalled such loaned shares as of the date of the Notice of Proxy Access Nomination and holds such shares through the date of the annual meeting. The terms ``owned,'' ``owning'' and other variations of the word ``own'' shall have correlative meanings. Whether outstanding shares of Nasdaq's common stock are ``owned'' for these purposes shall be determined by the Board or any committee thereof, in each case, in its sole discretion. For purposes of the proxy access provision of the By-Laws, the term ``affiliate'' or ``affiliates'' shall have the meaning ascribed thereto under the rules and regulations of the Act.\9\ An Eligible Stockholder shall include in its Notice of Proxy Access Nomination the number of shares it is deemed to own for the purposes of the proxy access provision of the By-Laws. --------------------------------------------------------------------------- \9\ Pursuant to Rule 12b-2 under the Act, ``[a]n `affiliate' of, or a person `affiliated' with, a specified person, is a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.'' 17 CFR 240.12b-2. Further, ``[t]he term `control' (including the terms `controlling,' `controlled by' and `under common control with') means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.'' 17 CFR 240.12b-2. --------------------------------------------------------------------------- Proposed Section 3.6(e) of the By-Laws The first paragraph of proposed Section 3.6(e) establishes certain requirements for an Eligible Stockholder to make a proxy access nomination. Specifically, an Eligible Stockholder must have owned (defined as discussed above) 3% or more (the ``Required Ownership Percentage'') of Nasdaq's outstanding common stock (the ``Required Shares'') continuously for 3 years (the ``Minimum Holding Period'') as of both the date the Notice of Proxy Access Nomination is received by Nasdaq's Corporate Secretary and the record date for determining the stockholders entitled to vote at the annual meeting and must continue to own the Required Shares through the meeting date. Proposed Section 3.6(e) also sets forth the information that an Eligible Stockholder must provide to Nasdaq's Corporate Secretary in writing within the deadline discussed above in order to make a proxy access nomination. This information includes: One or more written statements from the record holder of the shares (and from each intermediary through which the shares are or have been held during the Minimum Holding Period) verifying that, as of a date within seven calendar days prior to the date the Notice of Proxy Access Nomination is delivered to, or mailed to and received by, Nasdaq's Corporate Secretary, the Eligible Stockholder owns, and has owned continuously for the Minimum Holding Period, the Required Shares, and the Eligible Stockholder's agreement to provide, within five (5) business days after the record date for the annual meeting, written statements from the record holder and intermediaries verifying the Eligible Stockholder's continuous ownership of the Required Shares through the record date; \10\ --------------------------------------------------------------------------- \10\ See proposed Section 3.6(e)(i) of the By-Laws. --------------------------------------------------------------------------- a copy of the Schedule 14N that has been filed with the SEC as required by Rule 14a-18 under the Act; \11\ --------------------------------------------------------------------------- \11\ See proposed Section 3.6(e)(ii) of the By-Laws; see also 17 CFR 240.14n-101 and 17 CFR 240.14a-18, which generally require a Nominating Stockholder to provide notice to the Company of its intent to submit a proxy access nomination on a Schedule 14N and file that notice, including the required disclosure, with the Commission on the date first transmitted to the Company. --------------------------------------------------------------------------- the information, representations and agreements with respect to the Eligible Stockholder that are the same as those that would be required to be set forth in a stockholder's notice of nomination with respect to a ``Proposing Person'' pursuant to Section 3.1(b)(i) and Section 3.1(b)(iii) of the By-Laws; \12\ --------------------------------------------------------------------------- \12\ See proposed Section 3.6(e)(iii) of the By-Laws; see also Sections 3.1(b)(i) and 3.1(b)(iii) of the By-Laws, which constitute part of Nasdaq's ``advance notice'' provision under which a ``Proposing Person'' may, among other things, nominate a person for election to the Board. --------------------------------------------------------------------------- the consent of each Stockholder Nominee to being named in the proxy statement as a nominee and to serving as a director if elected; \13\ --------------------------------------------------------------------------- \13\ See proposed Section 3.6(e)(iv) of the By-Laws. --------------------------------------------------------------------------- a representation that the Eligible Stockholder: [cir] Acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control of Nasdaq, and does not presently have such intent; \14\ --------------------------------------------------------------------------- \14\ See proposed Section 3.6(e)(v)(A) of the By-Laws. --------------------------------------------------------------------------- [cir] presently intends to maintain qualifying ownership of the Required Shares through the date of the annual meeting; \15\ --------------------------------------------------------------------------- \15\ See proposed Section 3.6(e)(v)(B) of the By-Laws. --------------------------------------------------------------------------- [[Page 69130]] [cir] has not nominated and will not nominate for election any individual as a director at the annual meeting, other than its Stockholder Nominee(s); \16\ --------------------------------------------------------------------------- \16\ See proposed Section 3.6(e)(v)(C) of the By-Laws. --------------------------------------------------------------------------- [cir] has not engaged and will not engage in, and has not and will not be a participant in another person's, ``solicitation'' within the meaning of Rule 14a-1 (l) under the Act in support of the election of any individual as a director at the annual meeting, other than its Stockholder Nominee(s) or a nominee of the Board; \17\ --------------------------------------------------------------------------- \17\ See proposed Section 3.6(e)(v)(D) of the By-Laws; see also 17 CFR 240.14a-1(l), which defines the related terms ``solicit'' and ``solicitation.'' --------------------------------------------------------------------------- [cir] agrees to comply with all applicable laws and regulations with respect to any solicitation in connection with the meeting or applicable to the filing and use, if any, of soliciting material; \18\ --------------------------------------------------------------------------- \18\ See proposed Section 3.6(e)(v)(E) of the By-Laws. --------------------------------------------------------------------------- [cir] will provide facts, statements and other information in all communications with Nasdaq and its stockholders that are or will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; \19\ and --------------------------------------------------------------------------- \19\ See proposed Section 3.6(e)(v)(F) of the By-Laws. --------------------------------------------------------------------------- [cir] as to any two or more funds whose shares are aggregated to count as one stockholder for the purpose of constituting an Eligible Stockholder, within five business days after the date of the Notice of Proxy Access Nomination, will provide to Nasdaq documentation reasonably satisfactory to Nasdaq that demonstrates that the funds satisfy the requirements in the By-Laws, which were discussed above, for the funds to qualify as one Eligible Stockholder; \20\ --------------------------------------------------------------------------- \20\ See proposed Section 3.6(e)(v)(G) of the By-Laws. --------------------------------------------------------------------------- a representation as to the Eligible Stockholder's intentions with respect to maintaining qualifying ownership of the Required Shares for at least one year following the annual meeting; \21\ --------------------------------------------------------------------------- \21\ See proposed Section 3.6(e)(vi) of the By-Laws. --------------------------------------------------------------------------- an undertaking that the Eligible Stockholder agrees to: [cir] assume all liability stemming from any legal or regulatory violation arising out of the Eligible Stockholder's communications with Nasdaq's stockholders or out of the information that the Eligible Stockholder provided to Nasdaq; \22\ --------------------------------------------------------------------------- \22\ See proposed Section 3.6(e)(vii)(A) of the By-Laws. --------------------------------------------------------------------------- [cir] indemnify and hold harmless Nasdaq and each of its directors, officers and employees individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against Nasdaq or any of its directors, officers or employees arising out of any nomination submitted by the Eligible Stockholder pursuant to the proxy access provision; \23\ and --------------------------------------------------------------------------- \23\ See proposed Section 3.6(e)(vii)(B) of the By-Laws. --------------------------------------------------------------------------- [cir] file with the SEC any solicitation or other communication with Nasdaq's stockholders relating to the meeting at which the Stockholder Nominee will be nominated, regardless of whether any such filing is required under Regulation 14A of the Act or whether any exemption from filing is available thereunder; \24\ and --------------------------------------------------------------------------- \24\ See proposed Section 3.6(e)(vii)(C) of the By-Laws; see also 17 CFR 240.14a-1-14b-2, which governs solicitations of proxies. --------------------------------------------------------------------------- in the case of a nomination by a group of stockholders that together is an Eligible Stockholder, the designation by all group members of one group member that is authorized to act on behalf of all such members with respect to the nomination and matters related thereto, including withdrawal of the nomination.\25\ --------------------------------------------------------------------------- \25\ See proposed Section 3.6(e)(viii) of the By-Laws. --------------------------------------------------------------------------- In proposing the Required Ownership Percentage and the Minimum Holding Period, Nasdaq seeks to ensure that the Eligible Stockholder has had a sufficient stake in the Company for a sufficient amount of time and is not pursuing a short-term agenda. In proposing the informational requirements for the Eligible Stockholder, Nasdaq's goal is to gather sufficient information about the Eligible Stockholder for both itself and its stockholders. Among other things, this information will ensure that Nasdaq is able to comply with its disclosure and other requirements under applicable law and that Nasdaq, its Board and its stockholders are able to assess the proxy access nomination adequately. Proposed Section 3.6(f) of the By-Laws Proposed Section 3.6(f) establishes the information the Stockholder Nominee must deliver to Nasdaq's Corporate Secretary within the time period specified for delivering the Notice of Proxy Access Nomination. This information includes: The information required with respect to persons whom a stockholder proposes to nominate for election or reelection as a director by Section 3.1(b)(i) of the By-Laws \26\ including, but not limited to, the signed questionnaire, representation and agreement required by Section 3.1(b)(i)(D) of the By-Laws; \27\ and --------------------------------------------------------------------------- \26\ Section 3.1(b)(i) of the By-Laws describes the information that a proposing stockholder must provide about an individual the stockholder proposes to nominate for election or reelection as a director pursuant to the ``advance notice'' provision of the By- Laws. \27\ Section 3.1(b)(i)(D) of the By-Laws requires a completed and signed questionnaire, representation and agreement, each containing certain information, from each individual proposed to be nominated for election or reelection as a director pursuant to the ``advance notice'' provision of the By-Laws. --------------------------------------------------------------------------- a written representation and agreement that such person: [cir] Will act as a representative of all of Nasdaq's stockholders while serving as a director; and [cir] will provide facts, statements and other information in all communications with Nasdaq and its stockholders that are or will be true and correct in all material respects (and shall not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading). In addition, at the request of Nasdaq, the Stockholder Nominee(s) must submit all completed and signed questionnaires required of Nasdaq's directors and officers. Nasdaq may request such additional information as necessary to (y) permit the Board to determine if each Stockholder Nominee satisfies the requirements of the proxy access provision of the By-Laws or if each Stockholder Nominee is independent under the listing standards of The NASDAQ Stock Market, any applicable rules of the SEC and any publicly disclosed standards used by the Board in determining and disclosing the independence of Nasdaq's directors \28\ and/or (z) permit Nasdaq's Corporate Secretary to determine the classification of such nominee as an Industry, Non-Industry, Issuer or Public Director, if applicable, in order to make [[Page 69131]] the certification referenced in Section 4.13(h)(iii) of the By- Laws.\29\ --------------------------------------------------------------------------- \28\ Currently, the independence of Nasdaq's directors is determined pursuant to the definition of ``Independent Director'' in Listing Rule 5605(a)(2) of The NASDAQ Stock Market, under which certain categories of individuals cannot be deemed independent and with respect to other individuals, the Board must make an affirmative determination that such individual has no relationship that, in the opinion of the Board, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. Other independence standards under the SEC rules and the Listing Rules of The NASDAQ Stock Market apply to members of certain of the Board's committees. As detailed below, the Commission notes that, while additional, more stringent independence standards may be adopted by the Board in the future, as of the date of this Notice no such standards have been adopted by the Board. \29\ Section 4.13(h)(iii) of the By-Laws requires Nasdaq's Corporate Secretary to collect from each nominee for director such information as is reasonably necessary to serve as the basis for a determination of the nominee's classification as an Industry, Non- Industry, Issuer, or Public Director, if applicable, and to certify to the Committee each nominee's classification, if applicable. Detailed definitions of the terms ``Industry Director,'' ``Non- Industry Director,'' ``Issuer Director'' and ``Public Director'' are included in Article I of the By-Laws. --------------------------------------------------------------------------- Like the informational requirements for an Eligible Stockholder, which are set forth above, the informational requirements for the Stockholder Nominee ensure that both Nasdaq and its stockholders will have sufficient information about the Stockholder Nominee. Among other things, this information will ensure that Nasdaq is able to comply with its disclosure and other requirements under applicable law and that Nasdaq, its Board and its stockholders are able to assess the proxy access nomination adequately. Proposed Section 3.6(g) of the By-Laws Pursuant to proposed Section 3.6(g), each Eligible Stockholder or Stockholder Nominee must promptly notify Nasdaq's Corporate Secretary of any information or communications provided by the Eligible Stockholder or Stockholder Nominee to Nasdaq or its stockholders that ceases to be true and correct in all material respects or omits a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading and of the information that is required to correct any such defect. This provision further states that providing any such notification shall not be deemed to cure any defect or, with respect to any defect that Nasdaq determines is material, limit Nasdaq's rights to omit a Stockholder Nominee from its proxy materials. This provision is intended to protect Nasdaq's stockholders by requiring an Eligible Stockholder or Stockholder Nominee to give Nasdaq notice of information previously provided that is materially untrue. Nasdaq may then decide what action to take with respect to such defect, which may include, with respect to a material defect, omitting the relevant Stockholder Nominee from its proxy materials. Proposed Section 3.6(h) of the By-Laws Proposed Section 3.6(h) provides that Nasdaq shall not be required to include a Stockholder Nominee in its proxy materials for any meeting of stockholders under certain circumstances. In these situations, the proxy access nomination shall be disregarded and no vote on such Stockholder Nominee will occur, even if Nasdaq has received proxies in respect of the vote. These circumstances occur when the Stockholder Nominee: Has been nominated by an Eligible Stockholder who has engaged in or is currently engaged in, or has been or is a participant in another person's, ``solicitation'' within the meaning of Rule 14a- 1(l) under the Act in support of the election of any individual as a director at the annual meeting other than its Stockholder Nominee(s) or a nominee of the Board; \30\ --------------------------------------------------------------------------- \30\ See proposed Section 3.6(h)(i) of the By-Laws; see also 17 CFR 240.14a-1(l), which defines the related terms ``solicit'' and ``solicitation.'' --------------------------------------------------------------------------- is not independent under the listing standards of The NASDAQ Stock Market, any applicable rules of the SEC and any publicly disclosed standards used by the Board in determining and disclosing independence of Nasdaq's directors, in each case as determined by the Board in its sole discretion; \31\ --------------------------------------------------------------------------- \31\ See proposed Section 3.6(h)(ii) of the By-Laws; see also footnote 28, supra. The Commission notes that, while additional, more stringent independence standards may be adopted by the Board in the future, as of the date of this Notice no such standards have been adopted by the Board. The Commission further notes that, according to Nasdaq, should the Board decide to adopt additional, more stringent standards than those required under Nasdaq listing standards and any requirements under Commission rules, all director nominees would be evaluated against these standards--not just those shareholder candidates nominated under the provisions of proposed Section 3.6. --------------------------------------------------------------------------- would, if elected as a member of the Board, cause Nasdaq to be in violation of the By-Laws (including but not limited to the compositional requirements of the Board set forth in Section 4.3 of the By-Laws), its Amended and Restated Certificate of Incorporation, the rules and listing standards of The NASDAQ Stock Market, or any applicable state or federal law, rule or regulation; \32\ --------------------------------------------------------------------------- \32\ See proposed Section 3.6(h)(iii) of the By-Laws; see also Section 4.3 of the By-Laws, which provides that the number of Non- Industry Directors on the Board must equal or exceed the number of Industry Directors. In addition, the Board must include at least two Public Directors and may include at least one, but no more than two, Issuer Directors. Finally, the Board shall include no more than one Staff Director, unless the Board consists of ten or more directors, in which case, the Board shall include no more than two Staff Directors. Detailed definitions of the terms ``Non-Industry Director,'' ``Industry Director,'' ``Public Director,'' ``Issuer Director'' and ``Staff Director'' are included in Article I of the By-Laws. --------------------------------------------------------------------------- is or has been, within the past three (3) years, an officer or director of a competitor, as defined for purposes of Section 8 of the Clayton Antitrust Act of 1914; \33\ --------------------------------------------------------------------------- \33\ See proposed Section 3.6(h)(iv) of the By-Laws; see also 15 U.S.C. 19(a)(1), which generally provides that ``[n]o person shall, at the same time, serve as a director or officer in any two corporations'' that are ``competitors'' such that ``the elimination of competition by agreement between them would constitute a violation of any of the antitrust laws.'' --------------------------------------------------------------------------- is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such a criminal proceeding within the past ten (10) years; \34\ --------------------------------------------------------------------------- \34\ See proposed Section 3.6(h)(v) of the By-Laws. --------------------------------------------------------------------------- is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of 1933, as amended; \35\ --------------------------------------------------------------------------- \35\ See proposed Section 3.6(h)(vi) of the By-Laws; see also 17 CFR 230.506(d), which generally disqualifies offerings involving certain felons and other bad actors from relying on the ``safe harbor'' in Rule 506 of Regulation D from registration under the Securities Act of 1933, as amended. --------------------------------------------------------------------------- is subject to ``statutory disqualification'' under Section 3(a)(39) of the Act; \36\ --------------------------------------------------------------------------- \36\ See proposed Section 3.6(h)(vii) of the By-Laws; see also 15 U.S.C. 78c(a)(39), which disqualifies certain categories of individuals who generally have engaged in misconduct from membership or participation in, or association with a member of, a self- regulatory organization. --------------------------------------------------------------------------- has, or the applicable Eligible Stockholder has, provided information to Nasdaq in respect of the proxy access nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, as determined by the Board or any committee thereof, in each case, in its sole discretion; \37\ or --------------------------------------------------------------------------- \37\ See proposed Section 3.6(h)(viii) of the By-Laws. --------------------------------------------------------------------------- breaches or fails, or the applicable Eligible Stockholder breaches or fails, to comply with its obligations pursuant to the By- Laws, including, but not limited to, the proxy access provisions and any agreement, representation or undertaking required by the proxy access provisions.\38\ --------------------------------------------------------------------------- \38\ See proposed Section 3.6(h)(ix) of the By-Laws. --------------------------------------------------------------------------- Nasdaq believes these provisions will protect the Company and its stockholders by allowing it to exclude certain categories of objectionable Stockholder Nominees from the proxy statement. Proposed Section 3.6(i) of the By-Laws Under proposed Section 3.6(i), the Board or the chairman of the meeting of stockholders shall declare a proxy access nomination invalid, and such nomination shall be disregarded even if proxies in respect of such nomination have been received by the Company, if: The Stockholder Nominee(s) and/or the applicable Eligible Stockholder have breached its or their obligations under [[Page 69132]] the proxy access provision of the By-Laws, as determined by the Board or the chairman of the meeting of stockholders, in each case, in its or his sole discretion; or the Eligible Stockholder (or a qualified representative thereof) does not appear at the meeting of stockholders to present the proxy access nomination. Nasdaq believes this provision protects the Company and its stockholders by providing the Board or the chairman of the stockholder meeting limited authority to disqualify a proxy access nominee when that nominee or the sponsoring stockholder(s) have breached an obligation under the proxy access provision, including the obligation to appear at the stockholder meeting to present the proxy access nomination. Proposed Section 3.6(j) of the By-Laws Proposed Section 3.6(j) states that the following Stockholder Nominees who are included in the Company's proxy materials for a particular annual meeting of stockholders will be ineligible to be a Stockholder Nominee for the next two annual meetings: A Stockholder Nominee who withdraws from or becomes ineligible or unavailable for election at the annual meeting; or a Stockholder Nominee who does not receive at least 25% of the votes cast in favor of such Stockholder Nominee's election. This provision will save the Company and its stockholders the time and expense of analyzing and addressing subsequent proxy access nominations regarding individuals who were included in the proxy materials for a particular annual meeting but ultimately did not stand for election or receive a substantial amount of votes. After the next two annual meetings, these Stockholder Nominees would again be eligible for nomination through the proxy access provisions of the By-Laws. Proposed Section 3.6(k) of the By-Laws In case there are matters involving a proxy access nomination that are open to interpretation, proposed Section 3.6(k) states that the Board (or any other person or body authorized by the Board) shall have exclusive power and authority to interpret the proxy access provisions of the By-Laws and make all determinations deemed necessary or advisable as to any person, facts or circumstances. In addition, all actions, interpretations and determinations of the Board (or any person or body authorized by the Board) with respect to the proxy access provisions shall be final, conclusive and binding on the Company, the stockholders and all other parties. While Nasdaq has attempted to implement a clear, detailed and thorough proxy access provision, there may be matters about future proxy access nominations that are open to interpretation. In these cases, Nasdaq believes it is reasonable and necessary to designate an arbiter to make final decisions on these points and that the Board is best-suited to act as that arbiter. Proposed Section 3.6(l) of the By-Laws Proposed Section 3.6(l) prohibits a stockholder from joining more than one group of stockholders to become an Eligible Stockholder for purposes of submitting a proxy access nomination for each annual meeting of stockholders. Nasdaq analogizes this provision to Article IV, Paragraph C(1) of its Amended and Restated Certificate of Incorporation, under which each holder of Nasdaq's common stock shall be entitled to one vote per share on all matters presented to the stockholders for a vote. Similar to that provision, Nasdaq believes it is reasonable for each share to count only once in submitting a proxy access nomination. Proposed Section 3.6(m) of the By-Laws For the avoidance of doubt, proposed Section 3.6(m) states that the proxy access provisions outlined in Section 3.6 of the By-Laws shall be the exclusive means for stockholders to include nominees in the Company's proxy materials. Stockholders may, of course, continue to propose nominees to the Committee and Board through other means, but the Committee and Board will have final authority to determine whether to include those nominees in the Company's proxy materials. Revisions to Other Sections of the By-Laws Nasdaq also proposes to make conforming changes to Sections 3.1(a), 3.3(a), 3.3(c) and 3.5 of the By-Laws to provide clarifications and prevent confusion. Specifically, current Section 3.1(a) enumerates the methods by which nominations of persons for election to the Board may be made at an annual meeting of stockholders; Nasdaq proposes to add proxy access nominations to the list of methods. Current Section 3.3(a) specifies that, among other things, only such persons who are nominated in accordance with the procedures set forth in Article III of the By- Laws \39\ shall be eligible to be elected at an annual or special meeting of Nasdaq's stockholders to serve as directors; for the avoidance of doubt, Nasdaq proposes to clarify that the reference to Article III includes the proxy access provision in Section 3.6 of the By-Laws with respect to director nominations in connection with annual meetings. Current Section 3.3(c) states, among other things, that compliance with Section 3.1(a)(iii) and (b) \40\ shall be the exclusive means for a stockholder to make a director nomination; Nasdaq proposes to add proxy access as an additional means for a stockholder to make a director nomination. Finally, current Section 3.5 requires Nasdaq's director nominees to submit to Nasdaq's Corporate Secretary a questionnaire, representation and agreement within certain time periods; Nasdaq proposes to clarify that proxy access nominees must submit these materials within the time periods prescribed for delivery of a Notice of Proxy Access Nomination, as described above. --------------------------------------------------------------------------- \39\ Article III of the By-Laws relates to stockholder meetings. \40\ As part of Nasdaq's ``advance notice'' provision, Sections 3.1(a)(iii) and (b) of the By-Laws describe certain procedures that a stockholder must follow to, among other things, nominate a person for election to the Board. --------------------------------------------------------------------------- 2. Statutory Basis The Exchange believes that its proposal is consistent with Section 6(b) of the Act,\41\ in general, and furthers the objectives of Section 6(b)(5) of the Act,\42\ in particular, in that it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general to protect investors and the public interest. --------------------------------------------------------------------------- \41\ 15 U.S.C. 78f(b). \42\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- In response to feedback from its investors, Nasdaq is proposing changes to its By-Laws to implement proxy access. The Exchange believes that, by permitting an Eligible Stockholder of Nasdaq that meets the stated requirements to nominate directors and have its nominees included in Nasdaq's annual meeting proxy statement, the proposed rule change strengthens the corporate governance of the Exchange's ultimate parent company, which is beneficial to both investors and the public interest. In drafting its proxy access provision, Nasdaq has attempted to strike an appropriate balance between responding to investor feedback and including certain procedural and informational requirements for the protection of the Company and its investors. Specifically, the procedural requirements will protect investors by stating clearly and explicitly the procedures stockholders [[Page 69133]] must follow in order to submit a proper proxy access nomination. The informational requirements will enhance investor protection by ensuring, among other things, that the Company and its stockholders have full and accurate information about nominating stockholders and their nominees and that such stockholders and nominees comply with applicable laws, regulations and other requirements. Finally, the remaining changes are clarifying in nature, and they enhance investor protection and the public interest by preventing confusion with respect to the operation of the By-Law provisions. B. Self-Regulatory Organization's Statement on Burden on Competition Because the proposed rule change relates to the governance of the Company and not to the operations of the Exchange, 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 Within 45 days of the date of publication of this notice in the Federal Register or within such longer period (i) as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the Exchange consents, the Commission shall: (a) By order approve or disapprove such proposed rule change, or (b) institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or Send an email to [email protected]. Please include File Number SR-ISEMercury-2016-16 on the subject line. Paper Comments Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-ISEMercury-2016-16. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for 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 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; 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-ISEMercury-2016-16 and should be submitted on or before October 26, 2016. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.\43\ Robert W. Errett, Deputy Secretary. --------------------------------------------------------------------------- \43\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- [FR Doc. 2016-24002 Filed 10-4-16; 8:45 am] BILLING CODE 8011-01-P
![Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Notices 69127
SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s that such stockholders and nominees
COMMISSION Statement of the Purpose of, and will comply with applicable laws,
Statutory Basis for, the Proposed Rule regulations and other requirements.
Change
[Release No. 34–78980; File No. SR– Proposed Section 3.6(a) of the By-Laws
ISEMercury–2016–16] 1. Purpose To respond to feedback from its
Background stockholders, Nasdaq proposes to
Self-Regulatory Organizations; ISE
amend its By-Laws to, as set forth in the
Mercury, LLC; Notice of Filing of At Nasdaq’s 2016 annual meeting
first sentence of proposed Section 3.6(a),
Proposed Rule Change To Amend the held on May 5, 2016, Nasdaq’s require the Company to include in its
By-Laws of Nasdaq, Inc. To Implement stockholders considered a stockholder proxy statement, its form proxy and any
Proxy Access proposal submitted under Rule 14a-8 ballot distributed at the stockholder
under the Act.3 The proposal, which meeting, the name of, and certain
September 29, 2016. passed with 73.52% of the votes cast, Required Information 4 about, any
Pursuant to Section 19(b)(1) of the requested that Nasdaq’s Board of person nominated for election (the
Securities Exchange Act of 1934 Directors (the ‘‘Board’’) take steps to ‘‘Stockholder Nominee’’) to the Board
(‘‘Act’’),1 and Rule 19b–4 thereunder,2 implement a ‘‘proxy access’’ by-law. by a stockholder or group of
notice is hereby given that on Proxy access by-laws allow a stockholders (the ‘‘Eligible
September 15, 2016, ISE Mercury, LLC stockholder, or group of stockholders, Stockholder’’) 5 that satisfies the
(‘‘ISE Mercury’’) or ‘‘Exchange’’) filed who comply with certain requirements, requirements set forth in the proxy
with the Securities and Exchange to nominate candidates for service on a access provision of Nasdaq’s By-Laws.6
Commission (‘‘SEC’’ or ‘‘Commission’’) board and have those candidates To utilize this provision, the Eligible
the proposed rule change as described included in a company’s proxy Stockholder must expressly elect at the
in Items I, II, and III, below, which Items materials. Such provisions allow time of providing a required notice to
have been prepared by the Exchange. stockholders to nominate candidates the Company of the proxy access
without undertaking the expense of a nomination (the ‘‘Notice of Proxy
The Commission is publishing this
proxy solicitation. Access Nomination’’) to have its
notice to solicit comments on the
Following the 2016 annual meeting, nominee included in the Company’s
proposed rule change from interested
the Nominating & Governance proxy materials. Stockholders will be
persons. Committee (the ‘‘Committee’’) of the eligible to submit proxy access
I. Self-Regulatory Organization’s Board and the Board reviewed the nominations only at annual meetings of
Statement of the Terms of Substance of voting results on the stockholder stockholders when the Board solicits
the Proposed Rule Change proposal and discussed proxy access proxies with respect to the election of
generally. The Committee ultimately directors.
The Exchange is filing this proposed recommended to the Board, and the The next two sentences of Section
rule change with respect to amendments Board approved, certain changes to 3.6(a) provide some additional
of the By-Laws (the ‘‘By-Laws’’) of its Nasdaq’s By-Laws to implement proxy clarification on the term ‘‘Eligible
parent corporation, Nasdaq, Inc. access. Nasdaq now proposes to make Stockholder.’’ First, in calculating the
(‘‘Nasdaq’’ or the ‘‘Company’’), to these changes by adopting new Section number of stockholders in a group
implement proxy access. The proposed 3.6 of the By-Laws and making certain seeking to qualify as an Eligible
amendments will be implemented on a conforming changes to current Sections Stockholder, two or more of the
date designated by the Company 3.1, 3.3 and 3.5 of the By-Laws, all of following types of funds shall be
following approval by the Commission. which are described further below. counted as one stockholder: (i) Funds
The text of the proposed rule change is In developing its proposal, Nasdaq under common management and
available on the Exchange’s Web site at has generally tried to balance the investment control, (ii) funds under
www.ise.com, at the principal office of relative weight of arguments for and common management and funded
the Exchange, and at the Commission’s against proxy access provisions. On the primarily by the same employer, or (iii)
Public Reference Room. one hand, Nasdaq recognizes the funds that are a ‘‘group of investment
significance of this issue to some companies’’ as such term is defined in
II. Self-Regulatory Organization’s investors, who see proxy access as an Section 12(d)(1)(G)(ii) of the Investment
Statement of the Purpose of, and important accountability mechanism Company Act of 1940, as amended.7
Statutory Basis for, the Proposed Rule that allows them to participate in board
Change elections through the nomination of 4 The Required Information is the information
stockholder candidates that are provided to Nasdaq’s Corporate Secretary about the
In its filing with the Commission, the Stockholder Nominee and the Eligible Stockholder
presented in a company’s proxy that is required to be disclosed in the Company’s
Exchange included statements statement. On the other hand, Nasdaq’s proxy statement by the regulations promulgated
concerning the purpose of and basis for proposed proxy access provision under the Act, and if the Eligible Stockholder so
the proposed rule change and discussed includes certain procedural elects, a written statement, not to exceed 500 words,
in support of the Stockholder Nominee(s)’
any comments it received on the requirements that ensure, among other candidacy (the ‘‘Statement’’).
proposed rule change. The text of these things, that the Company and its 5 As used throughout Nasdaq’s By-Laws, the term
statements may be examined at the ‘‘Eligible Stockholder’’ includes each member of a
asabaliauskas on DSK3SPTVN1PROD with NOTICES
stockholders will have full and accurate
places specified in Item IV below. The stockholder group that submits a proxy access
information about nominating nomination to the extent the context requires.
Exchange has prepared summaries, set stockholders and their nominees and 6 When the Company includes proxy access
forth in sections A, B, and C below, of nominees in the proxy materials, such individuals
the most significant aspects of such 3 See 17 CFR 240.14a–8, which establishes will be included in addition to any persons
statements. procedures pursuant to which stockholders of a nominated for election to the Board or any
public company may have their proposals placed committee thereof.
alongside management’s proposals in the 7 See 15 U.S.C. 80a–12(d)(1)(G)(ii), which defines
1 15 U.S.C. 78s(b)(1). company’s proxy materials for presentation to a ‘‘group of investment companies’’ as any two or
2 17 CFR 240.19b–4. vote at a meeting of stockholders. Continued
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![69128 Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Notices
Nasdaq views this as a stockholder- Nomination. Specifically, such a notice submitted by Eligible Stockholders
friendly provision that will make it must be addressed to, and received by, pursuant to the proxy access provision
easier for such funds to participate in a Nasdaq’s Corporate Secretary no earlier exceeds the maximum number of
proxy access nomination since they will than one hundred fifty (150) days and nominees allowed. In the event that the
not have to comply with the procedural no later than one hundred twenty (120) number of Stockholder Nominees
requirements in the proxy access days before the anniversary of the date submitted by Eligible Stockholders
provision multiple times. Second, in the that Nasdaq issued its proxy statement exceeds the maximum number of
event that the Eligible Stockholder for the previous year’s annual meeting nominees allowed, the highest ranking
consists of a group of stockholders, any of stockholders. The Company believes Stockholder Nominee who meets the
and all requirements and obligations for this notice period will provide requirements of the proxy access
an individual Eligible Stockholder shall stockholders an adequate window to provision of the By-Laws from each
apply to each member of the group, submit nominees via proxy access, Eligible Stockholder will be selected for
except that the Required Ownership while also providing the Company inclusion in the proxy materials until
Percentage (discussed further below) adequate time to diligence [sic] a proxy the maximum number is reached, going
shall apply to the ownership of the access nominee before including them in order of the amount (largest to
group in the aggregate. Generally, the in the proxy statement for the next smallest) of shares of Nasdaq’s
applicable requirements and obligations annual meeting of stockholders. outstanding common stock each Eligible
relate to information that each member Stockholder disclosed as owned in its
Proposed Section 3.6(c) of the By-Laws
of the nominating group must provide to respective Notice of Proxy Access
Nasdaq about itself, as discussed further Proposed Section 3.6(c) specifies that Nomination submitted to Nasdaq. If the
below. Nasdaq believes it is reasonable the maximum number of Stockholder maximum number is not reached after
to require each member of the Nominees nominated by all Eligible the highest ranking Stockholder
nominating group to provide such Stockholders that will be included in Nominee who meets the requirements of
information so that both the Company Nasdaq’s proxy materials with respect to the proxy access provision of the By-
and its stockholders are fully informed an annual meeting of stockholders shall Laws from each Eligible Stockholder has
about the entire group making the proxy not exceed the greater of two and 25% been selected, this process will continue
access nomination. of the total number of directors in office as many times as necessary, following
The final sentence of proposed (rounded down to the nearest whole the same order each time, until the
Section 3.6(a) allows Nasdaq to omit number) as of the last day on which a maximum number is reached. Following
from its proxy materials any information Notice of Proxy Access Nomination may
such determination, if any Stockholder
or Statement (or portion thereof) that it, be delivered pursuant to and in
Nominee who satisfies the eligibility
in good faith, believes is untrue in any accordance with the proxy access
requirements thereafter is nominated by
material respect (or omits to state a provision of the By-Laws (the ‘‘Final
the Board, or is not included in the
material fact necessary in order to make Proxy Access Nomination Date’’). In the
proxy materials or is not submitted for
the statements made, in light of the event that one or more vacancies for any
election as a director, in either case, as
circumstances under which they are reason occurs after the Final Proxy
a result of the Eligible Stockholder
made, not misleading) or would violate Access Nomination Date but before the
becoming ineligible or withdrawing its
any applicable law or regulation. This date of the annual meeting and the
nomination, the Stockholder Nominee
provision allows Nasdaq to comply with Board resolves to reduce the size of the
Board in connection therewith, the becoming unwilling or unable to serve
Rule 14a–9 under the Act 8 and to
maximum number of Stockholder on the Board or the Eligible Stockholder
protect its stockholders from
Nominees included in Nasdaq’s proxy or the Stockholder Nominee failing to
information that is materially untrue or
materials shall be calculated based on comply with the proxy access provision
that violates any law or regulation. The
the number of directors in office as so of the By-Laws, no other nominee or
final sentence of proposed Section 3.6(a)
reduced. Any individual nominated by nominees shall be included in the proxy
also explicitly allows Nasdaq to solicit
an Eligible Stockholder for inclusion in materials or otherwise submitted for
against, and include in the proxy
the proxy materials pursuant to the director election in substitution thereof.
statement its own statement relating to,
any Stockholder Nominee. This proxy access provision of the By-Laws The Company believes it is reasonable
provision merely clarifies that just whom the Board decides to nominate as to limit the Board seats available to
because Nasdaq must include a proxy a nominee of the Board, and any proxy access nominees, to establish
access nominee in its proxy materials if individual nominated by an Eligible procedures for selecting candidates if
the proxy access provisions are Stockholder for inclusion in the proxy the nominee limit is exceeded and to
satisfied, Nasdaq does not necessarily materials pursuant to the proxy access exclude further proxy access nominees
have to support that nominee. provision but whose nomination is in the cases set forth above. The
subsequently withdrawn, shall be limitation on Board seats available to
Proposed Section 3.6(b) of the By-Laws counted as one of the Stockholder proxy access nominees ensures that
Proposed Section 3.6(b) of the By- Nominees for purposes of determining proxy access cannot be used to take over
Laws establishes the deadline for a when the maximum number of the entire Board, which is not the stated
timely Notice of Proxy Access Stockholder Nominees has been purpose of proxy access campaigns. The
reached. procedures for selecting candidates if
more registered investment companies that hold Any Eligible Stockholder submitting the nominee limit is exceeded establish
asabaliauskas on DSK3SPTVN1PROD with NOTICES
themselves out to investors as related companies for more than one Stockholder Nominee for clear and rational guidelines for an
purposes of investment and investor services.
8 See 17 CFR 240.14a–9, which generally inclusion in the proxy materials shall orderly nomination process to avoid the
prohibits proxy solicitations that contain any rank such Stockholder Nominees based Company having to make arbitrary
statement which, at the time and in the light of the on the order that the Eligible judgments among candidates. Finally,
circumstances under which it is made, is false or Stockholder desires such Stockholder the exclusion of further proxy access
misleading with respect to any material fact, or
which omits to state any material fact necessary in
Nominees to be selected for inclusion in nominees in certain cases will avoid
order to make the statements therein not false or the proxy statement in the event that the further time and expense to the
misleading. total number of Stockholder Nominees Company when the proxy access
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![Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Notices 69129
nominee has been nominated by the a proxy, power of attorney or other the deadline discussed above in order to
Board, in which case the goal of the instrument or arrangement which is make a proxy access nomination. This
proxy access nomination has been revocable at any time by the information includes:
achieved, or in certain cases when the stockholder. A stockholder’s ownership • One or more written statements
Eligible Stockholder or Stockholder of shares shall be deemed to continue from the record holder of the shares
Nominee is at fault. during any period in which the (and from each intermediary through
stockholder has loaned such shares which the shares are or have been held
Proposed Section 3.6(d) of the By-Laws
provided that the stockholder has the during the Minimum Holding Period)
Proposed Section 3.6(d) clarifies, for power to recall such loaned shares on verifying that, as of a date within seven
the avoidance of doubt, how three (3) business days’ notice, has calendar days prior to the date the
‘‘ownership’’ will be defined for recalled such loaned shares as of the Notice of Proxy Access Nomination is
purposes of meeting the Required date of the Notice of Proxy Access delivered to, or mailed to and received
Ownership Percentage (discussed Nomination and holds such shares by, Nasdaq’s Corporate Secretary, the
further below). Specifically, an Eligible through the date of the annual meeting. Eligible Stockholder owns, and has
Stockholder shall be deemed to ‘‘own’’ The terms ‘‘owned,’’ ‘‘owning’’ and owned continuously for the Minimum
only those outstanding shares of other variations of the word ‘‘own’’ shall Holding Period, the Required Shares,
Nasdaq’s common stock as to which the have correlative meanings. Whether and the Eligible Stockholder’s
stockholder possesses both: (i) The full outstanding shares of Nasdaq’s common agreement to provide, within five (5)
voting and investment rights pertaining stock are ‘‘owned’’ for these purposes business days after the record date for
to the shares; and (ii) the full economic shall be determined by the Board or any the annual meeting, written statements
interest in (including the opportunity committee thereof, in each case, in its from the record holder and
for profit from and risk of loss on) such sole discretion. For purposes of the intermediaries verifying the Eligible
shares; provided that the number of proxy access provision of the By-Laws, Stockholder’s continuous ownership of
shares calculated in accordance with the term ‘‘affiliate’’ or ‘‘affiliates’’ shall the Required Shares through the record
clauses (i) and (ii) shall not include any have the meaning ascribed thereto date; 10
shares: under the rules and regulations of the • a copy of the Schedule 14N that has
• Sold by such stockholder or any of Act.9 An Eligible Stockholder shall been filed with the SEC as required by
its affiliates in any transaction that has include in its Notice of Proxy Access Rule 14a–18 under the Act; 11
not been settled or closed, including any Nomination the number of shares it is • the information, representations
short sale; deemed to own for the purposes of the and agreements with respect to the
• borrowed by such stockholder or Eligible Stockholder that are the same as
proxy access provision of the By-Laws.
any of its affiliates for any purposes or those that would be required to be set
purchased by such stockholder or any of Proposed Section 3.6(e) of the By-Laws forth in a stockholder’s notice of
its affiliates pursuant to an agreement to The first paragraph of proposed nomination with respect to a ‘‘Proposing
resell; or Section 3.6(e) establishes certain Person’’ pursuant to Section 3.1(b)(i)
• subject to any option, warrant, and Section 3.1(b)(iii) of the By-Laws; 12
requirements for an Eligible Stockholder
forward contract, swap, contract of sale, • the consent of each Stockholder
to make a proxy access nomination.
other derivative or similar agreement Nominee to being named in the proxy
Specifically, an Eligible Stockholder
entered into by such stockholder or any statement as a nominee and to serving
must have owned (defined as discussed
of its affiliates, whether any such as a director if elected; 13
above) 3% or more (the ‘‘Required
instrument or agreement is to be settled
Ownership Percentage’’) of Nasdaq’s • a representation that the Eligible
with shares or with cash based on the Stockholder:
outstanding common stock (the
notional amount or value of shares of Æ Acquired the Required Shares in
‘‘Required Shares’’) continuously for 3
Nasdaq’s outstanding common stock, in the ordinary course of business and not
years (the ‘‘Minimum Holding Period’’)
any such case which instrument or with the intent to change or influence
as of both the date the Notice of Proxy
agreement has, or is intended to have, control of Nasdaq, and does not
Access Nomination is received by
or if exercised by either party would presently have such intent; 14
Nasdaq’s Corporate Secretary and the
have, the purpose or effect of: Æ presently intends to maintain
record date for determining the
Æ Reducing in any manner, to any qualifying ownership of the Required
stockholders entitled to vote at the
extent or at any time in the future, such Shares through the date of the annual
annual meeting and must continue to
stockholder’s or its affiliates’ full right meeting; 15
own the Required Shares through the
to vote or direct the voting of any such
meeting date.
shares; and/or 10 See proposed Section 3.6(e)(i) of the By-Laws.
Æ hedging, offsetting or altering to Proposed Section 3.6(e) also sets forth 11 See proposed Section 3.6(e)(ii) of the By-Laws;
any degree any gain or loss realized or the information that an Eligible see also 17 CFR 240.14n–101 and 17 CFR 240.14a–
realizable from maintaining the full Stockholder must provide to Nasdaq’s 18, which generally require a Nominating
economic ownership of such shares by Corporate Secretary in writing within Stockholder to provide notice to the Company of its
intent to submit a proxy access nomination on a
such stockholder or its affiliates. 9 Pursuant to Rule 12b–2 under the Act, ‘‘[a]n Schedule 14N and file that notice, including the
Further, a stockholder shall ‘‘own’’ ‘affiliate’ of, or a person ‘affiliated’ with, a specified
required disclosure, with the Commission on the
shares held in the name of a nominee date first transmitted to the Company.
person, is a person that directly, or indirectly 12 See proposed Section 3.6(e)(iii) of the By-Laws;
or other intermediary so long as the
asabaliauskas on DSK3SPTVN1PROD with NOTICES
through one or more intermediaries, controls, or is
controlled by, or is under common control with, the see also Sections 3.1(b)(i) and 3.1(b)(iii) of the By-
stockholder retains the right to instruct Laws, which constitute part of Nasdaq’s ‘‘advance
person specified.’’ 17 CFR 240.12b–2. Further,
how the shares are voted with respect to ‘‘[t]he term ‘control’ (including the terms notice’’ provision under which a ‘‘Proposing
the election of directors and possesses ‘controlling,’ ‘controlled by’ and ‘under common Person’’ may, among other things, nominate a
the full economic interest in the shares. control with’) means the possession, direct or person for election to the Board.
13 See proposed Section 3.6(e)(iv) of the By-Laws.
A stockholder’s ownership of shares indirect, of the power to direct or cause the
14 See proposed Section 3.6(e)(v)(A) of the By-
direction of the management and policies of a
shall be deemed to continue during any person, whether through the ownership of voting Laws.
period in which the stockholder has securities, by contract, or otherwise.’’ 17 CFR 15 See proposed Section 3.6(e)(v)(B) of the By-
delegated any voting power by means of 240.12b–2. Laws.
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![Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Notices 69131
the certification referenced in Section proxy access nomination shall be • is a named subject of a pending
4.13(h)(iii) of the By-Laws.29 disregarded and no vote on such criminal proceeding (excluding traffic
Like the informational requirements Stockholder Nominee will occur, even if violations and other minor offenses) or
for an Eligible Stockholder, which are Nasdaq has received proxies in respect has been convicted in such a criminal
set forth above, the informational of the vote. These circumstances occur proceeding within the past ten (10)
requirements for the Stockholder when the Stockholder Nominee: years; 34
Nominee ensure that both Nasdaq and • Has been nominated by an Eligible • is subject to any order of the type
its stockholders will have sufficient Stockholder who has engaged in or is specified in Rule 506(d) of Regulation D
information about the Stockholder currently engaged in, or has been or is promulgated under the Securities Act of
Nominee. Among other things, this a participant in another person’s, 1933, as amended; 35
information will ensure that Nasdaq is ‘‘solicitation’’ within the meaning of • is subject to ‘‘statutory
able to comply with its disclosure and Rule 14a–1(l) under the Act in support disqualification’’ under Section 3(a)(39)
other requirements under applicable of the election of any individual as a of the Act; 36
law and that Nasdaq, its Board and its director at the annual meeting other • has, or the applicable Eligible
stockholders are able to assess the proxy than its Stockholder Nominee(s) or a Stockholder has, provided information
access nomination adequately. nominee of the Board; 30 to Nasdaq in respect of the proxy access
• is not independent under the listing nomination that was untrue in any
Proposed Section 3.6(g) of the By-Laws standards of The NASDAQ Stock material respect or omitted to state a
Pursuant to proposed Section 3.6(g), Market, any applicable rules of the SEC material fact necessary in order to make
each Eligible Stockholder or and any publicly disclosed standards the statements made, in light of the
Stockholder Nominee must promptly used by the Board in determining and circumstances under which they were
notify Nasdaq’s Corporate Secretary of disclosing independence of Nasdaq’s made, not misleading, as determined by
any information or communications directors, in each case as determined by the Board or any committee thereof, in
provided by the Eligible Stockholder or the Board in its sole discretion; 31 each case, in its sole discretion; 37 or
Stockholder Nominee to Nasdaq or its • would, if elected as a member of the • breaches or fails, or the applicable
stockholders that ceases to be true and Board, cause Nasdaq to be in violation Eligible Stockholder breaches or fails, to
correct in all material respects or omits of the By-Laws (including but not comply with its obligations pursuant to
a material fact necessary to make the limited to the compositional the By-Laws, including, but not limited
statements made, in light of the requirements of the Board set forth in to, the proxy access provisions and any
circumstances under which they were Section 4.3 of the By-Laws), its agreement, representation or
made, not misleading and of the Amended and Restated Certificate of undertaking required by the proxy
information that is required to correct Incorporation, the rules and listing access provisions.38
any such defect. This provision further standards of The NASDAQ Stock Nasdaq believes these provisions will
states that providing any such Market, or any applicable state or protect the Company and its
notification shall not be deemed to cure federal law, rule or regulation; 32 stockholders by allowing it to exclude
any defect or, with respect to any defect • is or has been, within the past three certain categories of objectionable
that Nasdaq determines is material, (3) years, an officer or director of a Stockholder Nominees from the proxy
limit Nasdaq’s rights to omit a competitor, as defined for purposes of statement.
Stockholder Nominee from its proxy Section 8 of the Clayton Antitrust Act of Proposed Section 3.6(i) of the By-Laws
materials. This provision is intended to 1914; 33
protect Nasdaq’s stockholders by Under proposed Section 3.6(i), the
requiring an Eligible Stockholder or 30 See proposed Section 3.6(h)(i) of the By-Laws; Board or the chairman of the meeting of
Stockholder Nominee to give Nasdaq see also 17 CFR 240.14a–1(l), which defines the stockholders shall declare a proxy
related terms ‘‘solicit’’ and ‘‘solicitation.’’ access nomination invalid, and such
notice of information previously 31 See proposed Section 3.6(h)(ii) of the By-Laws;
provided that is materially untrue. nomination shall be disregarded even if
see also footnote 28, supra. The Commission notes
Nasdaq may then decide what action to that, while additional, more stringent independence proxies in respect of such nomination
take with respect to such defect, which standards may be adopted by the Board in the have been received by the Company, if:
future, as of the date of this Notice no such • The Stockholder Nominee(s) and/or
may include, with respect to a material standards have been adopted by the Board. The the applicable Eligible Stockholder have
defect, omitting the relevant Commission further notes that, according to
Nasdaq, should the Board decide to adopt breached its or their obligations under
Stockholder Nominee from its proxy
additional, more stringent standards than those
materials. required under Nasdaq listing standards and any provides that ‘‘[n]o person shall, at the same time,
requirements under Commission rules, all director serve as a director or officer in any two
Proposed Section 3.6(h) of the By-Laws nominees would be evaluated against these corporations’’ that are ‘‘competitors’’ such that ‘‘the
Proposed Section 3.6(h) provides that standards—not just those shareholder candidates elimination of competition by agreement between
nominated under the provisions of proposed them would constitute a violation of any of the
Nasdaq shall not be required to include Section 3.6. antitrust laws.’’
a Stockholder Nominee in its proxy 32 See proposed Section 3.6(h)(iii) of the By-Laws;
34 See proposed Section 3.6(h)(v) of the By-Laws.
materials for any meeting of see also Section 4.3 of the By-Laws, which provides 35 See proposed Section 3.6(h)(vi) of the By-Laws;
stockholders under certain that the number of Non-Industry Directors on the
see also 17 CFR 230.506(d), which generally
Board must equal or exceed the number of Industry
circumstances. In these situations, the Directors. In addition, the Board must include at disqualifies offerings involving certain felons and
least two Public Directors and may include at least other bad actors from relying on the ‘‘safe harbor’’
in Rule 506 of Regulation D from registration under
asabaliauskas on DSK3SPTVN1PROD with NOTICES
29 Section 4.13(h)(iii) of the By-Laws requires one, but no more than two, Issuer Directors. Finally,
Nasdaq’s Corporate Secretary to collect from each the Board shall include no more than one Staff the Securities Act of 1933, as amended.
36 See proposed Section 3.6(h)(vii) of the By-
nominee for director such information as is Director, unless the Board consists of ten or more
reasonably necessary to serve as the basis for a directors, in which case, the Board shall include no Laws; see also 15 U.S.C. 78c(a)(39), which
determination of the nominee’s classification as an more than two Staff Directors. Detailed definitions disqualifies certain categories of individuals who
Industry, Non-Industry, Issuer, or Public Director, if of the terms ‘‘Non-Industry Director,’’ ‘‘Industry generally have engaged in misconduct from
applicable, and to certify to the Committee each Director,’’ ‘‘Public Director,’’ ‘‘Issuer Director’’ and membership or participation in, or association with
nominee’s classification, if applicable. Detailed ‘‘Staff Director’’ are included in Article I of the By- a member of, a self-regulatory organization.
Laws. 37 See proposed Section 3.6(h)(viii) of the By-
definitions of the terms ‘‘Industry Director,’’ ‘‘Non-
Industry Director,’’ ‘‘Issuer Director’’ and ‘‘Public 33 See proposed Section 3.6(h)(iv) of the By-Laws; Laws.
Director’’ are included in Article I of the By-Laws. see also 15 U.S.C. 19(a)(1), which generally 38 See proposed Section 3.6(h)(ix) of the By-Laws.
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![Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Notices 69133
must follow in order to submit a proper ISEMercury–2016–16 on the subject SECURITIES AND EXCHANGE
proxy access nomination. The line. COMMISSION
informational requirements will
enhance investor protection by Paper Comments
[Release No. 34–78978; File No. SR–PHLX–
ensuring, among other things, that the • Send paper comments in triplicate 2016–93]
Company and its stockholders have full to Secretary, Securities and Exchange
and accurate information about Commission, 100 F Street NE., Self-Regulatory Organizations;
nominating stockholders and their NASDAQ PHLX LLC; Notice of Filing of
Washington, DC 20549–1090.
nominees and that such stockholders Proposed Rule Change To Amend the
and nominees comply with applicable All submissions should refer to File
By-Laws of Nasdaq, Inc. To Implement
laws, regulations and other Number SR–ISEMercury–2016–16. This Proxy Access
requirements. file number should be included on the
Finally, the remaining changes are subject line if email is used. To help the September 29, 2016.
clarifying in nature, and they enhance Commission process and review your Pursuant to Section 19(b)(1) of the
investor protection and the public comments more efficiently, please use Securities Exchange Act of 1934
interest by preventing confusion with only one method. The Commission will (‘‘Act’’) 1, and Rule 19b–4 thereunder,2
respect to the operation of the By-Law post all comments on the Commission’s notice is hereby given that on
provisions. Internet Web site (http://www.sec.gov/ September 15, 2016, NASDAQ PHLX
B. Self-Regulatory Organization’s rules/sro.shtml). Copies of the LLC (‘‘Phlx’’) or ‘‘Exchange’’) filed with
Statement on Burden on Competition submission, all subsequent the Securities and Exchange
amendments, all written statements Commission (‘‘SEC’’ or ‘‘Commission’’)
Because the proposed rule change
with respect to the proposed rule the proposed rule change as described
relates to the governance of the
change that are filed with the in Items I, II, and III, below, which Items
Company and not to the operations of
Commission, and all written have been prepared by the Exchange.
the Exchange, the Exchange does not
believe that the proposed rule change communications relating to the The Commission is publishing this
will impose any burden on competition proposed rule change between the notice to solicit comments on the
not necessary or appropriate in Commission and any person, other than proposed rule change from interested
furtherance of the purposes of the Act. those that may be withheld from the persons.
public in accordance with the
C. Self-Regulatory Organization’s I. Self-Regulatory Organization’s
provisions of 5 U.S.C. 552, will be
Statement on Comments on the Statement of the Terms of Substance of
available for Web site viewing and
Proposed Rule Change Received From the Proposed Rule Change
printing in the Commission’s Public
Members, Participants, or Others Reference Room, 100 F Street NE., The Exchange is filing this proposed
No written comments were either Washington, DC 20549, on official rule change with respect to amendments
solicited or received. business days between the hours of of the By-Laws (the ‘‘By-Laws’’) of its
III. Date of Effectiveness of the 10:00 a.m. and 3:00 p.m. Copies of the parent corporation, Nasdaq, Inc.
Proposed Rule Change and Timing for filing also will be available for (‘‘Nasdaq’’ or the ‘‘Company’’), to
Commission Action inspection and copying at the principal implement proxy access. The proposed
office of the Exchange. All comments amendments will be implemented on a
Within 45 days of the date of date designated by the Company
received will be posted without change;
publication of this notice in the Federal following approval by the Commission.
the Commission does not edit personal
Register or within such longer period (i) The text of the proposed rule change is
identifying information from
as the Commission may designate up to available on the Exchange’s Web site at
90 days of such date if it finds such submissions. You should submit only
information that you wish to make http://nasdaqphlx.cchwallstreet.com/,
longer period to be appropriate and at the principal office of the Exchange,
publishes its reasons for so finding or available publicly. All submissions
should refer to File Number SR– and at the Commission’s Public
(ii) as to which the Exchange consents, Reference Room.
the Commission shall: (a) By order ISEMercury–2016–16 and should be
approve or disapprove such proposed submitted on or before October 26, II. Self-Regulatory Organization’s
rule change, or (b) institute proceedings 2016. Statement of the Purpose of, and
to determine whether the proposed rule For the Commission, by the Division of Statutory Basis for, the Proposed Rule
change should be disapproved. Trading and Markets, pursuant to delegated Change
IV. Solicitation of Comments authority.43
In its filing with the Commission, the
Robert W. Errett, Exchange included statements
Interested persons are invited to
submit written data, views and Deputy Secretary. concerning the purpose of and basis for
arguments concerning the foregoing, [FR Doc. 2016–24002 Filed 10–4–16; 8:45 am] the proposed rule change and discussed
including whether the proposed rule BILLING CODE 8011–01–P any comments it received on the
change is consistent with the Act. proposed rule change. The text of these
statements may be examined at the
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Comments may be submitted by any of
the following methods: places specified in Item IV below. The
Exchange has prepared summaries, set
Electronic Comments forth in sections A, B, and C below, of
• Use the Commission’s Internet the most significant aspects of such
comment form (http://www.sec.gov/ statements.
rules/sro.shtml); or
• Send an email to rule-comments@ 1 15 U.S.C. 78s(b)(1).
sec.gov. Please include File Number SR– 43 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4.
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Document Created: 2016-10-05 03:28:56
Document Modified: 2016-10-05 03:28:56
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| FR Citation | 81 FR 69127 |
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