10418 Federal Register / Vol. 76, No. 37 / Thursday, February 24, 2011 / Notices 

18 15 U.S.C. 78f(b)(5). 

19 15 U.S.C. 78k–1(a)(1)(C)(i)–(iv). 

20 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act 

grants the Commission flexibility to determine what 

type of proceeding—either oral or notice and 

opportunity for written comments—is appropriate 

for consideration of a particular proposal by a selfregulatory organization. See Securities Acts 

Amendments of 1975, Report of the Senate 

Committee on Banking, Housing and Urban Affairs 

to Accompany S. 249, S. Rep. No. 75, 94th Cong., 

1st Sess. 30 (1975). 

21 17 CFR 200.30–3(a)(57). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

the rules thereunder that are applicable 

to the proposed rule change include: 

• Section 6(b)(5) of the Act, which 

requires, among other things, that the 

rules of a national securities exchange 

be 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, and not be designed to 

permit unfair discrimination between 

customers, issuers, brokers, or 

dealers; 18 and 

• Section 11A(a) of the Act, in which 

Congress found that it is in the public 

interest and appropriate for the 

protection of investors and the 

maintenance of fair and orderly markets 

to assure ‘‘economically efficient 

execution of securities transactions,’’ 

‘‘fair competition among brokers and 

dealers and among exchange markets,’’ 

‘‘the availability to brokers, dealers, and 

investors of information with respect to 

quotations for and transactions in 

securities,’’ and ‘‘the practicability of 

brokers executing investors’ orders in 

the best market.’’ 19

V. Procedure: Request for Written 

Comments 

The Commission requests written 

views, data, and arguments with respect 

to the concerns identified above as well 

as any other relevant concerns. Such 

comments should be submitted by April 

11, 2011. Rebuttal comments should be 

submitted by April 25, 2011. Although 

there do not appear to be any issues 

relevant to disapproval which would be 

facilitated by an oral presentation of 

views, data, and arguments, the 

Commission will consider, pursuant to 

Rule 19b–4, any request for an 

opportunity to make an oral 

presentation.20

The Commission asks that 

commenters address the merit of the 

Exchange’s statements in support of the 

proposal, in addition to any other 

comments they may wish to submit 

about the proposed rule change. 

Interested persons are invited to submit 

written data, views, and arguments 

concerning the proposed rule change, 

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/other.shtml); or 

• Send an e-mail to rulecomments@sec.gov. Please include File 

Number SR–EDGA–2010–18 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–EDGA–2010–18. The file 

number should be included on the 

subject line if e-mail is used. To help the 

Commission process and review your 

comments more efficiently, please use 

only one method. The Commission will 

post all comments on the Commission’s 

Internet Web site (http://www.sec.gov/ 

rules/other.shtml). Copies of the 

submission, all subsequent 

amendments, all written statements 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for Web site viewing and 

printing in the Commission’s Public 

Reference Room, 100 F Street, NE., 

Washington, DC 20549, on official 

business days between the hours of 

10 a.m. and 3 p.m. Copies of such filing 

also will be available for inspection and 

copying at the principal office of the 

Exchange. All comments received will 

be posted without change; the 

Commission does not edit personal 

identifying information from 

submissions. You should submit only 

information that you wish to make 

publicly available. All submissions 

should refer to File Number SR–EDGA– 

2010–18 and should be submitted on or 

before April 11, 2011. Rebuttal 

comments should be submitted by April 

25, 2011. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.21

Cathy H. Ahn, 

Deputy Secretary. 

[FR Doc. 2011–4158 Filed 2–23–11; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–63925; File No. SR– 

NASDAQ–2011–025] 

Self-Regulatory Organizations; 

NASDAQ Stock Market, LLC; Notice of 

Filing of Proposed Rule Change To 

Amend The NASDAQ OMX Group, Inc. 

By-Laws 

February 17, 2011. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’) 1 and Rule 19b–4 2 thereunder, 

notice is hereby given that on February 

8, 2011, 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 NASDAQ. 

The Commission is publishing this 

notice to solicit comments on the 

proposed rule change from interested 

persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The NASDAQ Stock Market LLC 

proposes to amend the By-Laws of its 

parent corporation, The NASDAQ OMX 

Group, Inc. (‘‘NASDAQ OMX’’). 

The text of the proposed rule change 

is available on the Exchange’s Web site 

at http://www.nasdaq.cchwall

street.com, at the principal office of the 

Exchange, on the Commission’s Web 

site at http://www.sec.gov, and at the 

Commission’s Public Reference Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

Exchange included statements 

concerning the purpose of and basis for 

the proposed rule change. 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, 


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 76, No. 37 / Thursday, February 24, 2011 / Notices 10419 

3See Securities Exchange Act Release No. 62783 

(August 27, 2010), 75 FR 54204 (September 3, 2010) 

(SR–Phlx–2010–104). 

4See Securities Exchange Act Release No. 60215 

(July 1, 2009), 74 FR 33293 (July 10, 2009) (SR– 

NYSE–2006–92) (a rule change to eliminate broker 

discretionary voting for all elections of directors at 

shareholder meetings held on or after January 1, 

2010, whether contested or not, except for 

companies registered under the 1940 Act). 

5A shareholder of a public company may hold 

shares either directly, as the record holder, or 

indirectly, as the beneficial holder, with the shares 

held in the name of the beneficial shareholder’s 

broker-dealer, bank nominee, or custodian 

(‘‘securities intermediary’’), which is the record 

holder. The latter generally is referred to as holding 

securities in ‘‘street name.’’ Securities 

intermediaries, on behalf of beneficial owners, hold 

a substantial majority of exchange securities. 

6See NYSE Rule 452.10(3) [sic]. The Commission 

notes that the correct reference is NYSE Rule 

452.11(19). 

7See Berlin v. Emerald Partners, Del Supr. 552 

A.2d 482 (1988). 

8See Securities Exchange Act Release No. 61876 

(April 8, 2010), 75 FR 19436 (April 8, 2010) [sic] 

(SR–NASDAQ–2010–025). 

9An abstention is the voluntary act of not voting 

by a stockholder who is present at a meeting and 

entitled to vote. 

10 In either a majority or plurality election, broker 

non-votes and abstentions are considered for 

purposes of establishing a quorum. A quorum is a 

majority of the shares entitled to vote, present in 

person or by proxy. 

11 15 U.S.C. 78f. 

12 15 U.S.C. 78f(b)(2), [sic] (5). 

of the most significant aspects of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

NASDAQ OMX is proposing to make 

certain clarifying amendments to its ByLaws. Specifically, NASDAQ OMX is 

proposing to amend: (i) The name of the 

Nominating Committee to the 

‘‘Nominating & Governance Committee’’; 

(ii) a NASDAQ OMX PHLX, Inc. 

reference to reflect a recent conversion 

to a limited liability company; and (iii) 

By-Law Article IV, Section 4.4 to clarify 

that broker nonvotes are not counted as 

a vote cast either ‘‘for’’ or ‘‘against’’ a 

Director. 

Currently, NASDAQ OMX By-Laws 

provide for a Nominating Committee 

which Committee is appointed pursuant 

to the By-Laws. The Exchange is 

proposing to name this Committee the 

‘‘Nominating & Governance Committee.’’ 

The Exchange proposes to amend the 

By-Laws to change all references to 

‘‘Nominating Committee’’ to state 

‘‘Nominating & Governance Committee.’’ 

The Exchange is proposing to rename 

the Nominating Committee in order that 

all of its current functions are reflected 

in the title of the committee. The 

current functions of the Nominating 

Committee encompass certain functions 

that are deemed governance functions. 

By way of example, and in addition 

to the responsibilities listed in By-Law 

Article IV, Section 4.13(h), the 

Nominating Committee consults with 

the Board and the management of the 

Company to determine the 

characteristics, skills and experience 

desired for the Board as a whole and for 

its individual members, with the 

objective of having a Board that reflects 

diverse backgrounds. The NonExecutive Chairman of the Board and 

the Nominating Committee is also 

responsible for overseeing the annual 

director evaluation. As part of the 

annual process of determining director 

representation on the corporate 

committees, the Non-Executive 

Chairman solicits input from each 

committee chair and Board members on 

the effectiveness of the committee, the 

committee chair and the individual 

Board member. The Nominating 

Committee receives the results and 

reviews the overall effectiveness of the 

Board. 

This proposed amendment to rename 

the Nominating Committee does not 

change the function of this committee. 

This proposal is merely to clarify the 

current function of this committee and 

its governance role with respect to the 

Board selection process. 

Second, NASDAQ OMX PHLX, Inc. 

recently filed a rule change to convert 

NASDAQ OMX PHLX from a Delaware 

corporation to a Delaware limited 

liability company agreement.3 At this 

time NASDAQ OMX proposes to amend 

the definitions at Article 1, specifically 

section (o) to change the reference to 

‘‘NASDAQ OMX PHLX, Inc.’’ to 

‘‘NASDAQ OMX PHLX LLC.’’ This 

amendment is not substantive and 

merely seeks to correct the name of a 

NASDAQ OMX subsidiary. 

Finally, NASDAQ OMX proposes to 

add the words ‘‘and broker nonvotes’’ to 

By-Law Article IV, Section 4–4 [sic] to 

clarify that broker nonvotes are not 

counted as a vote cast either ‘‘for’’ or 

‘‘against’’ that Director’s election. 

In 2009, New York Stock Exchange 

LLC (‘‘NYSE’’) Rule 452 was amended to 

eliminate broker discretionary voting for 

the election of Directors with one 

exception.4 Previously, NYSE Rule 452 

permitted brokers to vote without voting 

instructions from the beneficial owner 5

on uncontested elections of directors. 

The rule change requires instructions 

from the beneficial owner to give a 

proxy to vote for a director with an 

exception for companies registered 

under the Investment Company Act of 

1940.6 Therefore, when brokers do not 

have discretion to vote uninstructed 

shares on a particular proposal, the 

stockholder’s failure to instruct the 

broker will result in a ‘‘broker nonvote.’’ 

Under Delaware case law, broker nonvotes are not considered as votes cast for 

or against a proposal or director 

nominee.7 In its election of directors, 

NASDAQ OMX is proposing to clarify 

its current practice of not counting a 

broker nonvote as a vote cast either for 

or against a director’s election. In 2010, 

NASDAQ OMX amended its By-Laws to 

state that in an uncontested election, a 

majority voting standard would apply to 

the election of its directors.8 This 

requires directors to be elected by the 

holders of a majority of the votes cast at 

any meeting for the election of directors 

at which a quorum is present in an 

uncontested election. A plurality 

standard still remains in a contested 

election. The practice of not counting a 

broker nonvote as a vote cast either for 

or against a director’s election remains 

unchanged by the amendment to a 

majority vote standard. The Exchange is 

proposing to retain its current practice 

and codify such practice in its By-Laws 

at Article IV, Section 4.4. This Section 

4.4 currently specifies that abstentions 9

are similarly not counted as a vote cast 

either for or against the director’s 

election.10

This proposal is non-substantive and 

merely clarifies the existing practice of 

counting broker non votes [sic]. The 

Exchange believes that this additional 

language to Article IV, Section 4.4 will 

assist shareholders in understanding the 

manor [sic] in which directors are 

elected pursuant to NASDAQ OMX’s 

By-Laws. 

2. Statutory Basis 

The NASDAQ Exchange believes that 

the proposed rule change is consistent 

with the provisions of Section 6 of the 

Act,11 in general, and with Sections 

6(b)(5) of the Act,12 in particular, in that 

the proposal enables the NASDAQ 

Exchange to be so organized as to have 

the capacity to be able to carry out the 

purposes of the Act and to comply with 

and enforce compliance by members 

and persons associated with members 

with provisions of the Act, the rules and 

regulations thereunder, and selfregulatory organization rules, and is 

designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, to foster cooperation and 

coordination with persons engaged in 

regulating, clearing, settling, processing 

information with respect to, and 

facilitating transactions in securities, to 

remove impediments to and perfect the 


emcdonald on DSK2BSOYB1PROD with NOTICES
10420 Federal Register / Vol. 76, No. 37 / Thursday, February 24, 2011 / Notices 

13 17 CFR 200.30–3(a)(12). 

mechanism of a free and open market 

and a national market system, and, in 

general, to protect investors and the 

public interest. 

The Exchange believes that the 

proposed amendments are clarifying 

amendments or are non-substantive. 

The proposals would provide the proper 

Committee and entity names, with 

respect to the proposals to change the 

Nominating Committee and NASDAQ 

OMX PHLX names, and in the case of 

the broker nonvote proposal, would 

provide additional information to 

shareholders. The Exchange believes 

that these proposed amendments protect 

investors and the public interest, 

including NASDAQ OMX shareholders, 

in that the proposed changes would 

serve to clarify NASDAQ OMX’s ByLaws and processes for its annual 

election. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change will result in 

any burden on competition not 

necessary or appropriate in furtherance 

of the purposes of the Act. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants or Others 

No written comments were either 

solicited or received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Within 45 days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

90 days of such date if it finds such 

longer period to be appropriate and 

publishes its reasons for so finding or 

(ii) as to which the self-regulatory 

organization 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 e-mail to rulecomments@sec.gov. Please include File 

Number SR–NASDAQ–2011–025 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–NASDAQ–2011–025. This 

file number should be included on the 

subject line if e-mail is used. To help the 

Commission process and review your 

comments more efficiently, please use 

only one method. The Commission will 

post all comments on the Commission’s 

Internet Web site (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 website viewing and 

printing in the Commission’s Public 

Reference Room, 100 F Street, NE., 

Washington, DC 20549, on official 

business days between the hours of 10 

a.m. and 3 p.m. Copies of such filing 

also will be available for inspection and 

copying at the principal office of the 

Exchange. All comments received will 

be posted without change; the 

Commission does not edit personal 

identifying information from 

submissions. You should submit only 

information that you wish to make 

available publicly. All submissions 

should refer to File No. SR–NASDAQ– 

2011–025 and should be submitted on 

or before March 17, 2011. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.13

Cathy H. Ahn, 

Deputy Secretary. 

[FR Doc. 2011–4117 Filed 2–23–11; 8:45 am] 

BILLING CODE 8011–01–P 

SMALL BUSINESS ADMINISTRATION 

Delegation of Authority 

AGENCY: U.S. Small Business 

Administration. 

ACTION: Notice of delegation of 

authority. 

SUMMARY: This document provides the 

public notice of the delegation of 

authority for certain investment 

activities by the Administrator of the 

Small Business Administration (SBA) to 

the Agency Licensing Committee. 

FOR FURTHER INFORMATION CONTACT: 

Sean Greene, Associate Administrator 

for Investment, U.S. Small Business 

Administration, 409 3rd Street, SW., 

Washington, DC 20416; (202) 205–2227 

or sbic@sba.gov. 

SUPPLEMENTARY INFORMATION: This 

document provides the public notice of 

the Administrator’s delegation of 

authority to the Agency Licensing 

Committee to review and recommend to 

the Administrator for approval 

applications for licenses to operate as a 

small business investment company 

under the Small Business Investment 

Act of 1958, as amended. 

This delegation of authority reads as 

follows: 

Pursuant to the authority vested in me 

pursuant to section 301 of the Small 

Business Investment Act of 1958, as 

amended, the authority to take any and 

all actions necessary to review 

applications for licensing under section 

301 of the Small Business Investment 

Act of 1958, as amended, and to 

recommend to the Administrator which 

such applications should be approved is 

delegated to the Agency Licensing 

Committee. 

The Agency Licensing Committee 

shall be composed of the following 

members: Deputy Administrator, Chair; 

Associate Administrator for Capital 

Access; Associate Administrator for 

Investment; General Counsel; Deputy 

General Counsel; Chief Financial 

Officer. 

This authority revokes all other 

authorities granted by the Administrator 

to recommend and approve applications 

for a license to operate as a small 

business investment company under the 

Small Business Investment Act of 1958, 

as amended. This authority may not be 

re-delegated; however, in the event that 

the person serving in one of the 

positions listed as a member of the 

Agency Licensing Committee is absent 

from the office, as defined in SBA 

Standard Operating Procedure 00 01 2, 

Chapter 3, paragraph 2, or is unable to 

perform the functions and duties of his 

or her position, the individual serving 

in an acting capacity, pursuant to a 

written and established line of 

succession, shall serve on the 

Committee during such absence or 

inability. In addition, if one of the 

positions listed as a member of the 


emcdonald on DSK2BSOYB1PROD with NOTICES