81 FR 69145 - Self-Regulatory Organizations; The NASDAQ Stock Market 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 | 69145-69152 | |
| FR Document | 2016-24001 |
[Federal Register Volume 81, Number 193 (Wednesday, October 5, 2016)] [Notices] [Pages 69145-69152] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-24001] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-78979; File No. SR-NASDAQ-2016-127] Self-Regulatory Organizations; The NASDAQ Stock Market 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, The NASDAQ Stock Market LLC (``NASDAQ'') 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. [[Page 69146]] The text of the proposed rule change is available on the Exchange's Web site at http://nasdaq.cchwallstreet.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\ 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 [[Page 69147]] 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 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 [[Page 69148]] 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. --------------------------------------------------------------------------- [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 [[Page 69149]] 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 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 [[Page 69150]] 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 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 [[Page 69151]] 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 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 [[Page 69152]] 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-NASDAQ-2016-127 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-NASDAQ-2016-127. 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-NASDAQ-2016-127 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\ --------------------------------------------------------------------------- \43\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- Robert W. Errett, Deputy Secretary. [FR Doc. 2016-24001 Filed 10-4-16; 8:45 am] BILLING CODE 8011-01-P
![Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Notices 69145
competition because the Exchange’s III. Date of Effectiveness of the Washington, DC 20549 on official
execution services are completely Proposed Rule Change and Timing for business days between the hours of
voluntary and subject to extensive Commission Action 10:00 a.m. and 3:00 p.m. Copies of such
competition both from other exchanges filing also will be available for
The foregoing rule change has become
and from off-exchange venues. In this inspection and copying at the principal
effective pursuant to Section
instance, changes to the incentive fees office of the Exchange. All comments
19(b)(3)(A)(ii) of the Act.8
and rebates provided under Rule 7014 received will be posted without change;
At any time within 60 days of the
are reflective of the Exchange’s need to the Commission does not edit personal
filing of the proposed rule change, the
balance the incentives provided and the identifying information from
Commission summarily may
submissions. You should submit only
resulting beneficial market behavior temporarily suspend such rule change if
information that you wish to make
with the cost of such incentives to the it appears to the Commission that such
available publicly. All submissions
Exchange and their effectiveness. The action is: (i) Necessary or appropriate in
should refer to File Number SR–
Exchange is both offering new the public interest; (ii) for the protection
NASDAQ–2016–132, and should be
incentives and strengthening criteria for of investors; or (iii) otherwise in
submitted on or before October 26,
other incentives. Similarly, the changes furtherance of the purposes of the Act. 2016.
to the credits and fees assessed for the If the Commission takes such action, the
Commission shall institute proceedings For the Commission, by the Division of
use of the order execution and routing Trading and Markets, pursuant to delegated
services of the Nasdaq Market Center by to determine whether the proposed rule
authority.9
members for all securities priced at $1 should be approved or disapproved.
Robert W. Errett,
or more that it trades are reflective of IV. Solicitation of Comments Deputy Secretary.
the same analysis of the benefits versus
Interested persons are invited to [FR Doc. 2016–23999 Filed 10–4–16; 8:45 am]
costs incurred by the Exchange in
submit written data, views, and BILLING CODE 8011–01–P
offering execution and routing services. arguments concerning the foregoing,
In this present case, the Exchange is including whether the proposed rule
modifying and adding new credits while change is consistent with the Act. SECURITIES AND EXCHANGE
also increasing fees assessed for use of Comments may be submitted by any of COMMISSION
the Nasdaq Opening and Closing the following methods: [Release No. 34–78979; File No. SR–
Crosses. All of the proposed changes are NASDAQ–2016–127]
subject to intense competition among Electronic Comments
trading venues, which are free to make • Use the Commission’s Internet Self-Regulatory Organizations; The
changes to their fees and credits that comment form (http://www.sec.gov/ NASDAQ Stock Market LLC; Notice of
they provide as a competitive response rules/sro.shtml); or Filing of Proposed Rule Change To
to the Exchange’s proposed changes. • Send an email to rule-comments@ Amend the By-Laws of Nasdaq, Inc. To
Moreover, the proposed changes do not sec.gov. Please include File Number SR– Implement Proxy Access
impose a burden on competition NASDAQ–2016–132 on the subject line.
September 29, 2016.
because Exchange membership and Paper Comments Pursuant to Section 19(b)(1) of the
participation is optional and is also the Securities Exchange Act of 1934
subject of competition from other • Send paper comments in triplicate
to Secretary, Securities and Exchange (‘‘Act’’),1 and Rule 19b–4 thereunder,2
trading venues. A member may elect to notice is hereby given that on
Commission, 100 F Street NE.,
participate on another exchange to September 15, 2016, The NASDAQ
Washington, DC 20549–1090.
extent it believes that fees assessed by Stock Market LLC (‘‘NASDAQ’’) or
Nasdaq are too high, or credits and All submissions should refer to File ‘‘Exchange’’) filed with the Securities
rebates provided are too low. For these Number SR–NASDAQ–2016–132. This and Exchange Commission (‘‘SEC’’ or
reasons, the Exchange does not believe file number should be included on the ‘‘Commission’’) the proposed rule
subject line if email is used. To help the change as described in Items I, II, and
that any of the proposed changes will
Commission process and review your III, below, which Items have been
impair the ability of members or
comments more efficiently, please use prepared by the Exchange. The
competing order execution venues to only one method. The Commission will
maintain their competitive standing in Commission is publishing this notice to
post all comments on the Commission’s solicit comments on the proposed rule
the financial markets. Last, because Internet Web site (http://www.sec.gov/
there are numerous competitive change from interested persons.
rules/sro.shtml). Copies of the
alternatives to the use of the Exchange, submission, all subsequent I. Self-Regulatory Organization’s
it is likely that the Exchange will lose amendments, all written statements Statement of the Terms of Substance of
market share as a result of the changes with respect to the proposed rule the Proposed Rule Change
if they are unattractive to market change that are filed with the The Exchange is filing this proposed
participants. Commission, and all written rule change with respect to amendments
communications relating to the of the By-Laws (the ‘‘By-Laws’’) of its
C. Self-Regulatory Organization’s
proposed rule change between the parent corporation, Nasdaq, Inc.
Statement on Comments on the
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Commission and any person, other than (‘‘Nasdaq’’ or the ‘‘Company’’), to
Proposed Rule Change Received From
those that may be withheld from the implement proxy access. The proposed
Members, Participants, or Others public in accordance with the amendments will be implemented on a
No written comments were either provisions of 5 U.S.C. 552, will be date designated by the Company
solicited or received. available for Web site viewing and following approval by the Commission.
printing in the Commission’s Public
Reference Room, 100 F Street NE., 9 17 CFR 200.30–3(a)(12).
1 15 U.S.C. 78s(b)(1).
8 15 U.S.C. 78s(b)(3)(A)(ii). 2 17 CFR 240.19b–4.
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![Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Notices 69147
protect its stockholders from an Eligible Stockholder for inclusion in materials or otherwise submitted for
information that is materially untrue or the proxy materials pursuant to the director election in substitution thereof.
that violates any law or regulation. The proxy access provision of the By-Laws The Company believes it is reasonable
final sentence of proposed Section 3.6(a) whom the Board decides to nominate as to limit the Board seats available to
also explicitly allows Nasdaq to solicit a nominee of the Board, and any proxy access nominees, to establish
against, and include in the proxy individual nominated by an Eligible procedures for selecting candidates if
statement its own statement relating to, Stockholder for inclusion in the proxy the nominee limit is exceeded and to
any Stockholder Nominee. This materials pursuant to the proxy access exclude further proxy access nominees
provision merely clarifies that just provision but whose nomination is in the cases set forth above. The
because Nasdaq must include a proxy subsequently withdrawn, shall be limitation on Board seats available to
access nominee in its proxy materials if counted as one of the Stockholder proxy access nominees ensures that
the proxy access provisions are Nominees for purposes of determining proxy access cannot be used to take over
satisfied, Nasdaq does not necessarily when the maximum number of the entire Board, which is not the stated
have to support that nominee. Stockholder Nominees has been purpose of proxy access campaigns. The
reached. procedures for selecting candidates if
Proposed Section 3.6(b) of the By-Laws the nominee limit is exceeded establish
Any Eligible Stockholder submitting
Proposed Section 3.6(b) of the By- clear and rational guidelines for an
more than one Stockholder Nominee for
Laws establishes the deadline for a orderly nomination process to avoid the
inclusion in the proxy materials shall
timely Notice of Proxy Access Company having to make arbitrary
Nomination. Specifically, such a notice rank such Stockholder Nominees based
judgments among candidates. Finally,
must be addressed to, and received by, on the order that the Eligible
the exclusion of further proxy access
Nasdaq’s Corporate Secretary no earlier Stockholder desires such Stockholder
nominees in certain cases will avoid
than one hundred fifty (150) days and Nominees to be selected for inclusion in
further time and expense to the
no later than one hundred twenty (120) the proxy statement in the event that the
Company when the proxy access
days before the anniversary of the date total number of Stockholder Nominees
nominee has been nominated by the
that Nasdaq issued its proxy statement submitted by Eligible Stockholders
Board, in which case the goal of the
for the previous year’s annual meeting pursuant to the proxy access provision
proxy access nomination has been
of stockholders. The Company believes exceeds the maximum number of
achieved, or in certain cases when the
this notice period will provide nominees allowed. In the event that the Eligible Stockholder or Stockholder
stockholders an adequate window to number of Stockholder Nominees Nominee is at fault.
submit nominees via proxy access, submitted by Eligible Stockholders
while also providing the Company exceeds the maximum number of Proposed Section 3.6(d) of the By-Laws
adequate time to diligence [sic] a proxy nominees allowed, the highest ranking Proposed Section 3.6(d) clarifies, for
access nominee before including them Stockholder Nominee who meets the the avoidance of doubt, how
in the proxy statement for the next requirements of the proxy access ‘‘ownership’’ will be defined for
annual meeting of stockholders. provision of the By-Laws from each purposes of meeting the Required
Eligible Stockholder will be selected for Ownership Percentage (discussed
Proposed Section 3.6(c) of the By-Laws inclusion in the proxy materials until further below). Specifically, an Eligible
Proposed Section 3.6(c) specifies that the maximum number is reached, going Stockholder shall be deemed to ‘‘own’’
the maximum number of Stockholder in order of the amount (largest to only those outstanding shares of
Nominees nominated by all Eligible smallest) of shares of Nasdaq’s Nasdaq’s common stock as to which the
Stockholders that will be included in outstanding common stock each Eligible stockholder possesses both: (i) The full
Nasdaq’s proxy materials with respect to Stockholder disclosed as owned in its voting and investment rights pertaining
an annual meeting of stockholders shall respective Notice of Proxy Access to the shares; and (ii) the full economic
not exceed the greater of two and 25% Nomination submitted to Nasdaq. If the interest in (including the opportunity
of the total number of directors in office maximum number is not reached after for profit from and risk of loss on) such
(rounded down to the nearest whole the highest ranking Stockholder shares; provided that the number of
number) as of the last day on which a Nominee who meets the requirements of shares calculated in accordance with
Notice of Proxy Access Nomination may the proxy access provision of the By- clauses (i) and (ii) shall not include any
be delivered pursuant to and in Laws from each Eligible Stockholder has shares:
accordance with the proxy access been selected, this process will continue • Sold by such stockholder or any of
provision of the By-Laws (the ‘‘Final as many times as necessary, following its affiliates in any transaction that has
Proxy Access Nomination Date’’). In the the same order each time, until the not been settled or closed, including any
event that one or more vacancies for any maximum number is reached. Following short sale;
reason occurs after the Final Proxy such determination, if any Stockholder • borrowed by such stockholder or
Access Nomination Date but before the Nominee who satisfies the eligibility any of its affiliates for any purposes or
date of the annual meeting and the requirements thereafter is nominated by purchased by such stockholder or any of
Board resolves to reduce the size of the the Board, or is not included in the its affiliates pursuant to an agreement to
Board in connection therewith, the proxy materials or is not submitted for resell; or
maximum number of Stockholder election as a director, in either case, as • subject to any option, warrant,
Nominees included in Nasdaq’s proxy a result of the Eligible Stockholder forward contract, swap, contract of sale,
asabaliauskas on DSK3SPTVN1PROD with NOTICES
materials shall be calculated based on becoming ineligible or withdrawing its other derivative or similar agreement
the number of directors in office as so nomination, the Stockholder Nominee entered into by such stockholder or any
reduced. Any individual nominated by becoming unwilling or unable to serve of its affiliates, whether any such
on the Board or the Eligible Stockholder instrument or agreement is to be settled
circumstances under which it is made, is false or or the Stockholder Nominee failing to with shares or with cash based on the
misleading with respect to any material fact, or
which omits to state any material fact necessary in
comply with the proxy access provision notional amount or value of shares of
order to make the statements therein not false or of the By-Laws, no other nominee or Nasdaq’s outstanding common stock, in
misleading. nominees shall be included in the proxy any such case which instrument or
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![69148 Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Notices
agreement has, or is intended to have, Proposed Section 3.6(e) of the By-Laws Person’’ pursuant to Section 3.1(b)(i)
or if exercised by either party would and Section 3.1(b)(iii) of the By-Laws; 12
have, the purpose or effect of: The first paragraph of proposed • the consent of each Stockholder
Section 3.6(e) establishes certain Nominee to being named in the proxy
Æ Reducing in any manner, to any requirements for an Eligible Stockholder
extent or at any time in the future, such statement as a nominee and to serving
to make a proxy access nomination. as a director if elected; 13
stockholder’s or its affiliates’ full right
to vote or direct the voting of any such
Specifically, an Eligible Stockholder • a representation that the Eligible
must have owned (defined as discussed Stockholder:
shares; and/or above) 3% or more (the ‘‘Required Æ acquired the Required Shares in the
Æ hedging, offsetting or altering to Ownership Percentage’’) of Nasdaq’s ordinary course of business and not
any degree any gain or loss realized or outstanding common stock (the with the intent to change or influence
realizable from maintaining the full ‘‘Required Shares’’) continuously for 3 control of Nasdaq, and does not
economic ownership of such shares by years (the ‘‘Minimum Holding Period’’) presently have such intent;14
such stockholder or its affiliates. as of both the date the Notice of Proxy Æ presently intends to maintain
Further, a stockholder shall ‘‘own’’ Access Nomination is received by qualifying ownership of the Required
shares held in the name of a nominee Nasdaq’s Corporate Secretary and the Shares through the date of the annual
or other intermediary so long as the record date for determining the meeting; 15
stockholder retains the right to instruct stockholders entitled to vote at the Æ has not nominated and will not
how the shares are voted with respect to annual meeting and must continue to nominate for election any individual as
the election of directors and possesses own the Required Shares through the a director at the annual meeting, other
the full economic interest in the shares. meeting date. than its Stockholder Nominee(s); 16
A stockholder’s ownership of shares Proposed Section 3.6(e) also sets forth Æ has not engaged and will not
shall be deemed to continue during any the information that an Eligible engage in, and has not and will not be
period in which the stockholder has Stockholder must provide to Nasdaq’s a participant in another person’s,
delegated any voting power by means of Corporate Secretary in writing within ‘‘solicitation’’ within the meaning of
a proxy, power of attorney or other the deadline discussed above in order to Rule 14a–1(l) under the Act in support
instrument or arrangement which is make a proxy access nomination. This of the election of any individual as a
revocable at any time by the information includes: director at the annual meeting, other
stockholder. A stockholder’s ownership than its Stockholder Nominee(s) or a
• one or more written statements nominee of the Board; 17
of shares shall be deemed to continue from the record holder of the shares
during any period in which the Æ agrees to comply with all
(and from each intermediary through applicable laws and regulations with
stockholder has loaned such shares which the shares are or have been held
provided that the stockholder has the respect to any solicitation in connection
during the Minimum Holding Period) with the meeting or applicable to the
power to recall such loaned shares on verifying that, as of a date within seven
three (3) business days’ notice, has filing and use, if any, of soliciting
calendar days prior to the date the material; 18
recalled such loaned shares as of the Notice of Proxy Access Nomination is
date of the Notice of Proxy Access Æ will provide facts, statements and
delivered to, or mailed to and received other information in all
Nomination and holds such shares by, Nasdaq’s Corporate Secretary, the
through the date of the annual meeting. communications with Nasdaq and its
Eligible Stockholder owns, and has stockholders that are or will be true and
The terms ‘‘owned,’’ ‘‘owning’’ and owned continuously for the Minimum
other variations of the word ‘‘own’’ shall correct in all material respects and do
Holding Period, the Required Shares, not and will not omit to state a material
have correlative meanings. Whether and the Eligible Stockholder’s
outstanding shares of Nasdaq’s common fact necessary in order to make the
agreement to provide, within five (5) statements made, in light of the
stock are ‘‘owned’’ for these purposes business days after the record date for
shall be determined by the Board or any circumstances under which they were
the annual meeting, written statements made, not misleading; 19 and
committee thereof, in each case, in its from the record holder and
sole discretion. For purposes of the Æ as to any two or more funds whose
intermediaries verifying the Eligible shares are aggregated to count as one
proxy access provision of the By-Laws, Stockholder’s continuous ownership of
the term ‘‘affiliate’’ or ‘‘affiliates’’ shall stockholder for the purpose of
the Required Shares through the record constituting an Eligible Stockholder,
have the meaning ascribed thereto date; 10
under the rules and regulations of the within five business days after the date
Act.9 An Eligible Stockholder shall • a copy of the Schedule 14N that has
include in its Notice of Proxy Access been filed with the SEC as required by 12 See proposed Section 3.6(e)(iii) of the By-Laws;
Rule 14a–18 under the Act; 11 see also Sections 3.1(b)(i) and 3.1(b)(iii) of the By-
Nomination the number of shares it is Laws, which constitute part of Nasdaq’s ‘‘advance
deemed to own for the purposes of the • the information, representations notice’’ provision under which a ‘‘Proposing
proxy access provision of the By-Laws. and agreements with respect to the Person’’ may, among other things, nominate a
Eligible Stockholder that are the same as person for election to the Board.
13 See proposed Section 3.6(e)(iv) of the By-Laws.
9 Pursuant to Rule 12b–2 under the Act, ‘‘[a]n those that would be required to be set 14 See proposed Section 3.6(e)(v)(A) of the By-
‘affiliate’ of, or a person ‘affiliated’ with, a specified forth in a stockholder’s notice of Laws.
person, is a person that directly, or indirectly nomination with respect to a ‘‘Proposing 15 See proposed Section 3.6(e)(v)(B) of the By-
asabaliauskas on DSK3SPTVN1PROD with NOTICES
through one or more intermediaries, controls, or is
Laws.
controlled by, or is under common control with, the 16 See proposed Section 3.6(e)(v)(C) of the By-
10 See proposed Section 3.6(e)(i) of the By-Laws.
person specified.’’ 17 CFR 240.12b–2. Further,
‘‘[t]he term ‘control’ (including the terms 11 See proposed Section 3.6(e)(ii) of the By-Laws; Laws.
17 See proposed Section 3.6(e)(v)(D) of the By-
‘controlling,’ ‘controlled by’ and ‘under common see also 17 CFR 240.14n–101 and 17 CFR 240.14a–
control with’) means the possession, direct or 18, which generally require a Nominating Laws; see also 17 CFR 240.14a–1(l), which defines
indirect, of the power to direct or cause the Stockholder to provide notice to the Company of its the related terms ‘‘solicit’’ and ‘‘solicitation.’’
18 See proposed Section 3.6(e)(v)(E) of the By-
direction of the management and policies of a intent to submit a proxy access nomination on a
person, whether through the ownership of voting Schedule 14N and file that notice, including the Laws.
securities, by contract, or otherwise.’’ 17 CFR required disclosure, with the Commission on the 19 See proposed Section 3.6(e)(v)(F) of the By-
240.12b–2. date first transmitted to the Company. Laws.
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![69150 Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Notices
states that providing any such limited to the compositional • breaches or fails, or the applicable
notification shall not be deemed to cure requirements of the Board set forth in Eligible Stockholder breaches or fails, to
any defect or, with respect to any defect Section 4.3 of the By-Laws), its comply with its obligations pursuant to
that Nasdaq determines is material, Amended and Restated Certificate of the By-Laws, including, but not limited
limit Nasdaq’s rights to omit a Incorporation, the rules and listing to, the proxy access provisions and any
Stockholder Nominee from its proxy standards of The NASDAQ Stock agreement, representation or
materials. This provision is intended to Market, or any applicable state or undertaking required by the proxy
protect Nasdaq’s stockholders by federal law, rule or regulation; 32 access provisions.38
requiring an Eligible Stockholder or • is or has been, within the past three Nasdaq believes these provisions will
Stockholder Nominee to give Nasdaq (3) years, an officer or director of a protect the Company and its
notice of information previously competitor, as defined for purposes of stockholders by allowing it to exclude
provided that is materially untrue. Section 8 of the Clayton Antitrust Act of certain categories of objectionable
Nasdaq may then decide what action to 1914; 33 Stockholder Nominees from the proxy
take with respect to such defect, which • is a named subject of a pending statement.
may include, with respect to a material criminal proceeding (excluding traffic
violations and other minor offenses) or Proposed Section 3.6(i) of the By-Laws
defect, omitting the relevant
Stockholder Nominee from its proxy has been convicted in such a criminal Under proposed Section 3.6(i), the
materials. proceeding within the past ten (10) Board or the chairman of the meeting of
years; 34 stockholders shall declare a proxy
Proposed Section 3.6(h) of the By-Laws • is subject to any order of the type access nomination invalid, and such
Proposed Section 3.6(h) provides that specified in Rule 506(d) of Regulation D nomination shall be disregarded even if
Nasdaq shall not be required to include promulgated under the Securities Act of proxies in respect of such nomination
a Stockholder Nominee in its proxy 1933, as amended; 35 have been received by the Company, if:
materials for any meeting of • is subject to ‘‘statutory • The Stockholder Nominee(s) and/or
stockholders under certain disqualification’’ under Section 3(a)(39) the applicable Eligible Stockholder have
circumstances. In these situations, the of the Act; 36 breached its or their obligations under
proxy access nomination shall be • has, or the applicable Eligible the proxy access provision of the By-
disregarded and no vote on such Stockholder has, provided information Laws, as determined by the Board or the
Stockholder Nominee will occur, even if to Nasdaq in respect of the proxy access chairman of the meeting of
Nasdaq has received proxies in respect nomination that was untrue in any stockholders, in each case, in its or his
of the vote. These circumstances occur material respect or omitted to state a sole discretion; or
when the Stockholder Nominee: material fact necessary in order to make • the Eligible Stockholder (or a
• Has been nominated by an Eligible the statements made, in light of the qualified representative thereof) does
Stockholder who has engaged in or is circumstances under which they were not appear at the meeting of
currently engaged in, or has been or is made, not misleading, as determined by stockholders to present the proxy access
a participant in another person’s, the Board or any committee thereof, in nomination.
‘‘solicitation’’ within the meaning of each case, in its sole discretion; 37 or Nasdaq believes this provision
Rule 14a–1(l) under the Act in support protects the Company and its
32 See proposed Section 3.6(h)(iii) of the By-Laws;
of the election of any individual as a see also Section 4.3 of the By-Laws, which provides
stockholders by providing the Board or
director at the annual meeting other that the number of Non-Industry Directors on the the chairman of the stockholder meeting
than its Stockholder Nominee(s) or a Board must equal or exceed the number of Industry limited authority to disqualify a proxy
nominee of the Board; 30 Directors. In addition, the Board must include at access nominee when that nominee or
least two Public Directors and may include at least
• is not independent under the listing one, but no more than two, Issuer Directors. Finally,
the sponsoring stockholder(s) have
standards of The NASDAQ Stock the Board shall include no more than one Staff breached an obligation under the proxy
Market, any applicable rules of the SEC Director, unless the Board consists of ten or more access provision, including the
and any publicly disclosed standards directors, in which case, the Board shall include no obligation to appear at the stockholder
more than two Staff Directors. Detailed definitions
used by the Board in determining and of the terms ‘‘Non-Industry Director,’’ ‘‘Industry meeting to present the proxy access
disclosing independence of Nasdaq’s Director,’’ ‘‘Public Director,’’ ‘‘Issuer Director’’ and nomination.
directors, in each case as determined by ‘‘Staff Director’’ are included in Article I of the By-
Laws. Proposed Section 3.6(j) of the By-Laws
the Board in its sole discretion; 31
• would, if elected as a member of the
33 See proposed Section 3.6(h)(iv) of the By-Laws;
Proposed Section 3.6(j) states that the
see also 15 U.S.C. 19(a)(1), which generally
Board, cause Nasdaq to be in violation provides that ‘‘[n]o person shall, at the same time,
following Stockholder Nominees who
of the By-Laws (including but not serve as a director or officer in any two are included in the Company’s proxy
corporations’’ that are ‘‘competitors’’ such that ‘‘the materials for a particular annual
30 See proposed Section 3.6(h)(i) of the By-Laws; elimination of competition by agreement between meeting of stockholders will be
them would constitute a violation of any of the
see also 17 CFR 240.14a–1(l), which defines the
antitrust laws.’’
ineligible to be a Stockholder Nominee
related terms ‘‘solicit’’ and ‘‘solicitation.’’ for the next two annual meetings:
34 See proposed Section 3.6(h)(v) of the By-Laws.
• A Stockholder Nominee who
31 See proposed Section 3.6(h)(ii) of the By-Laws;
35 See proposed Section 3.6(h)(vi) of the By-Laws;
see also footnote 28, supra. The Commission notes
that, while additional, more stringent independence see also 17 CFR 230.506(d), which generally withdraws from or becomes ineligible or
standards may be adopted by the Board in the disqualifies offerings involving certain felons and unavailable for election at the annual
other bad actors from relying on the ‘‘safe harbor’’
asabaliauskas on DSK3SPTVN1PROD with NOTICES
future, as of the date of this Notice no such meeting; or
in Rule 506 of Regulation D from registration under
standards have been adopted by the Board. The
the Securities Act of 1933, as amended. • a Stockholder Nominee who does
Commission further notes that, according to
Nasdaq, should the Board decide to adopt 36 See proposed Section 3.6(h)(vii) of the By- not receive at least 25% of the votes cast
additional, more stringent standards than those Laws; see also 15 U.S.C. 78c(a)(39), which in favor of such Stockholder Nominee’s
required under Nasdaq listing standards and any disqualifies certain categories of individuals who election.
requirements under Commission rules, all director generally have engaged in misconduct from
membership or participation in, or association with
This provision will save the Company
nominees would be evaluated against these
standards—not just those shareholder candidates a member of, a self-regulatory organization. and its stockholders the time and
nominated under the provisions of proposed 37 See proposed Section 3.6(h)(viii) of the By-
Section 3.6. Laws. 38 See proposed Section 3.6(h)(ix) of the By-Laws.
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![69152 Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Notices
Register or within such longer period (i) available publicly. All submissions II. Self-Regulatory Organization’s
as the Commission may designate up to should refer to File Number SR– Statement of the Purpose of, and
90 days of such date if it finds such NASDAQ–2016–127 and should be Statutory Basis for, the Proposed Rule
longer period to be appropriate and submitted on or before October 26, Change
publishes its reasons for so finding or 2016. In its filing with the Commission, the
(ii) as to which the Exchange consents, Exchange included statements
For the Commission, by the Division of
the Commission shall: (a) By order concerning the purpose of and basis for
Trading and Markets, pursuant to delegated
approve or disapprove such proposed the proposed rule change and discussed
authority.43
rule change, or (b) institute proceedings any comments it received on the
to determine whether the proposed rule Robert W. Errett,
proposed rule change. The text of these
change should be disapproved. Deputy Secretary. statements may be examined at the
[FR Doc. 2016–24001 Filed 10–4–16; 8:45 am] places specified in Item IV below. The
IV. Solicitation of Comments
BILLING CODE 8011–01–P Exchange has prepared summaries, set
Interested persons are invited to
forth in sections A, B, and C below, of
submit written data, views and
the most significant aspects of such
arguments concerning the foregoing, SECURITIES AND EXCHANGE statements.
including whether the proposed rule COMMISSION
change is consistent with the Act. A. Self-Regulatory Organization’s
Comments may be submitted by any of Statement of the Purpose of, and
the following methods: [Release No. 34–78986; File No. SR–BX– Statutory Basis for, the Proposed Rule
2016–051] Change
Electronic Comments
• Use the Commission’s Internet Self-Regulatory Organizations; 1. Purpose
comment form (http://www.sec.gov/ NASDAQ BX, Inc.; Notice of Filing of Background
rules/sro.shtml); or Proposed Rule Change To Amend the
At Nasdaq’s 2016 annual meeting
• Send an email to rule-comments@ By-Laws of Nasdaq, Inc. to Implement
held on May 5, 2016, Nasdaq’s
sec.gov. Please include File Number SR– Proxy Access stockholders considered a stockholder
NASDAQ–2016–127 on the subject line.
September 29, 2016. proposal submitted under Rule 14a–8
Paper Comments under the Act.3 The proposal, which
Pursuant to Section 19(b)(1) of the passed with 73.52% of the votes cast,
• Send paper comments in triplicate Securities Exchange Act of 1934
to Secretary, Securities and Exchange requested that Nasdaq’s Board of
(‘‘Act’’) 1, and Rule 19b–4 thereunder,2 Directors (the ‘‘Board’’) take steps to
Commission, 100 F Street NE.,
notice is hereby given that on implement a ‘‘proxy access’’ by-law.
Washington, DC 20549–1090.
September 15, 2016, NASDAQ BX, Inc. Proxy access by-laws allow a
All submissions should refer to File (‘‘BX’’ or ‘‘Exchange’’) filed with the stockholder, or group of stockholders,
Number SR–NASDAQ–2016–127. This
Securities and Exchange Commission who comply with certain requirements,
file number should be included on the
(‘‘SEC’’ or ‘‘Commission’’) the proposed to nominate candidates for service on a
subject line if email is used. To help the
rule change as described in Items I, II, board and have those candidates
Commission process and review your
and III, below, which Items have been included in a company’s proxy
comments more efficiently, please use
prepared by the Exchange. The materials. Such provisions allow
only one method. The Commission will
Commission is publishing this notice to stockholders to nominate candidates
post all comments on the Commission’s without undertaking the expense of a
Internet Web site (http://www.sec.gov/ solicit comments on the proposed rule
change from interested persons. proxy solicitation.
rules/sro.shtml). Copies of the Following the 2016 annual meeting,
submission, all subsequent I. Self-Regulatory Organization’s the Nominating & Governance
amendments, all written statements Statement of the Terms of Substance of Committee (the ‘‘Committee’’) of the
with respect to the proposed rule the Proposed Rule Change Board and the Board reviewed the
change that are filed with the voting results on the stockholder
Commission, and all written The Exchange is filing this proposed proposal and discussed proxy access
communications relating to the rule change with respect to amendments generally. The Committee ultimately
proposed rule change between the of the By-Laws (the ‘‘By-Laws’’) of its recommended to the Board, and the
Commission and any person, other than parent corporation, Nasdaq, Inc. Board approved, certain changes to
those that may be withheld from the (‘‘Nasdaq’’ or the ‘‘Company’’), to Nasdaq’s By-Laws to implement proxy
public in accordance with the implement proxy access. The proposed access. Nasdaq now proposes to make
provisions of 5 U.S.C. 552, will be amendments will be implemented on a these changes by adopting new Section
available for Web site viewing and date designated by the Company 3.6 of the By-Laws and making certain
printing in the Commission’s Public conforming changes to current Sections
following approval by the Commission.
Reference Room, 100 F Street NE., 3.1, 3.3 and 3.5 of the By-Laws, all of
The text of the proposed rule change is
Washington, DC 20549, on official which are described further below.
business days between the hours of available on the Exchange’s Web site at
In developing its proposal, Nasdaq
10:00 a.m. and 3:00 p.m. Copies of the http://nasdaqbx.cchwallstreet.com/, at
asabaliauskas on DSK3SPTVN1PROD with NOTICES
has generally tried to balance the
filing also will be available for the principal office of the Exchange, and
relative weight of arguments for and
inspection and copying at the principal at the Commission’s Public Reference against proxy access provisions. On the
office of the Exchange. All comments Room.
received will be posted without change; 3 See 17 CFR 240.14a–8, which establishes
the Commission does not edit personal procedures pursuant to which stockholders of a
public company may have their proposals placed
identifying information from 43 17 CFR 200.30–3(a)(12).
alongside management’s proposals in the
submissions. You should submit only 1 15 U.S.C. 78s(b)(1). company’s proxy materials for presentation to a
information that you wish to make 2 17 CFR 240.19b–4. vote at a meeting of stockholders.
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Document Created: 2016-10-05 03:29:40
Document Modified: 2016-10-05 03:29:40
| 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 69145 |
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