[Federal Register Volume 77, Number 16 (Wednesday, January 25, 2012)]
[Notices]
[Pages 3829-3833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1444]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-66192; File No. SR-NYSEArca-2012-02]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Order Granting Accelerated Approval of a Proposed Rule Amendments
to NYSE Arca Rule 9.4 and NYSE Equities Inc. Rules 5.3(d) and 9.4
Relating to Discretionary Proxy Voting on Executive Compensation
Matters and Election of Directors To Comply With the Dodd-Frank Act
January 19, 2012.
Pursuant to Section 19(b)(1)\1\ of the Securities Exchange Act of
1934 (``Act'')\2\ and Rule 19b-4 thereunder,\3\ notice is hereby given
that, on January 5, 2012, NYSE Arca, Inc. (``Exchange'' or ``NYSE
Arca'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons and is approving the
proposed rule change on an accelerated basis.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change
The Exchange proposes to amend NYSE Arca Rule 9.4 and to adopt
Commentary .01 to NYSE Arca Rule 9.4 and, through its wholly-owned
corporation, NYSE Arca Equities, Inc. (``NYSE Arca Equities''),
proposes to amend NYSE Arca Equities Rule 5.3(d) and NYSE Arca Equities
Rule 9.4 and to adopt Commentary .01 to NYSE Arca Equities Rule 9.4.
These amendments are being made to comply with the requirements of the
Dodd-Frank Act with respect to the broker voting rules of national
securities exchanges. The text of the proposed rule change is available
at the Exchange, the Commission's Public Reference Room, and
www.nyse.com.
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 self-regulatory organization
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 those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
Section 957 of the Dodd-Frank Wall Street Reform and Consumer
Protection Act (the ``Dodd-Frank Act'') adopted new Section 6(b)(10)
\4\ of the Securities Exchange Act (the ``Exchange Act'').\5\ This new
provision requires all national securities exchanges to adopt rules
that prohibit their members from voting on the election of a member of
the board of directors of an issuer (except for a vote with respect to
the uncontested election of a member of the board of directors of any
investment company registered under the Investment Company Act of
1940), executive compensation, or any other significant matter, as
determined by the Commission, by rule, unless the member receives
voting instructions from the beneficial owner of the shares.
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\4\ 15 U.S.C. 78f(b)(10).
\5\ 15 U.S.C. 78a.
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NYSE Arca Rule 9.4 governs when OTP Holders and OTP Firms may vote
shares held for customers and NYSE Arca Equities Rule 9.4 governs when
ETP Holders may votes[sic] shares held for customers. NYSE Arca Rule
9.4 prohibits OTP Holders and OTP Firms, and NYSE Arca Equities Rule
9.4 prohibits ETP Holders, from voting any uninstructed shares, but
also permits the OTP Holder or OTP Firm (in the case of NYSE Arca Rule
9.4) or ETP Holder (in the case of NYSE Arca Equities Rule 9.4) to
follow the rules of another national securities exchange instead. In
addition to its general requirements with respect to voting of
uninstructed shares by ETP Holders, NYSE Arca Equities Rule 9.4
specifically prohibits ETP Holders from voting uninstructed shares on
any proposal with respect to the implementation of any equity
compensation plan, or any material revision to the terms of any
existing equity compensation plan (whether or not stockholder approval
of such plan is required by NYSE Arca Equities Rule 5.3(d)(1)-(7)),
unless the beneficial owner of the shares has given voting
instructions.
In order to assure compliance, in all cases, with newly adopted
Section
[[Page 3830]]
6(b)(10), NYSE Arca proposes to add Commentaries (each titled ``Proxies
Voting'') to each of NYSE Arca Rule 9.4 and NYSE Arca Equities Rule 9.4
to provide that in no event could an OTP Holder or OTP Firm (in the
case of NYSE Arca Rule 9.4) or ETP Holder (in the case of NYSE Arca
Equities Rule 9.4) vote uninstructed shares on the election of a member
of the board of directors of an issuer (except for a vote with respect
to the uncontested election of a member of the board of directors of
any investment company registered under the Investment Company Act of
1940), executive compensation, or any other significant matter, as
determined by the Commission, by rule, unless instructed by the
beneficial owner of the shares.
NYSE Arca also proposes to amend NYSE Arca Rule 9.4 and NYSE Arca
Equities Rule 9.4 to provide that an OTP Holder or OTP Firm (in the
case of NYSE Arca Rule 9.4) or ETP Holder (in the case of NYSE Arca
Equities Rule 9.4) may only follow the rules of another SRO in voting
shares if, in doing so, its records clearly indicate the procedures it
is following.
NYSE Arca proposes to amend NYSE Arca Equities Rule 9.4 to delete
the specific prohibition in that rule with respect to ETP Holders
voting uninstructed shares on any proposal with respect to the
implementation of any equity compensation plan, or any material
revision to the terms of any existing equity compensation plan (whether
or not stockholder approval of such plan is required by NYSE Arca
Equities Rule 5.3(d)(1)-(7)), unless the beneficial owner of the shares
has given voting instructions. NYSE Arca is proposing to delete this
text because the Exchange believes it is no longer necessary, as NYSE
Arca Equities Rule 9.4 generally prohibits ETP Holders from voting
shares held on behalf of a beneficial owner except pursuant to the
instructions of such beneficial holder and proposed Commentary .01 to
NYSE Arca Equities Rule 9.4 would specifically prohibit ETP Holders
from voting without such instructions on any proposal relating to
executive compensation, or any other significant matter, as determined
by the SEC, by rule. Subparagraph (7) of NYSE Arca Equities Rule 5.3(d)
is currently a cross-reference to the prohibition of NYSE Arca Equities
Rule 9.4 on voting uninstructed shares on equity compensation matters
and it will be rendered moot by the elimination of that aspect of NYSE
Arca Equities Rule 9.4. Consequently, NYSE Arca proposes to amend this
provision so that it will be a cross-reference to the voting
restrictions of NYSE Arca Equities Rule 9.4 generally.
NYSE Arca is also proposing to make several other minor changes to
the applicable rules. First, NYSE Arca proposes to add the words ``or
authorize'' or ``or authorizing'' in certain places in NYSE Arca Rule
9.4 and NYSE Arca Equities Rule 9.4 to clarify that the rules cover not
only the giving of a proxy but also the authorization of such proxy.
Second, NYSE Arca proposes to amend references to ``actual'' owners in
certain places in NYSE Arca Rule 9.4 and NYSE Arca Equities Rule 9.4 so
that they will now refer to ``beneficial'' owners, as this is the term
used in the federal securities laws and Commission rules. Third, NYSE
Arca proposes to amend NYSE Arca Rule 9.4 and NYSE Arca Equities Rule
9.4 to modify the language which currently states that an OTP Holder or
OTP Firm or ETP holder, as applicable, may vote shares when permitted
to do so pursuant to the rules of another national securities exchange
to which he or his firm ``is responsible'' As a clarification, NYSE
Arca proposes to amend this language so that it will state that an OTP
Holder or OTP Firm or ETP holder, as applicable, may vote shares when
permitted to do so pursuant to the rules of another national securities
exchange of which he or his firm is a member. Finally, NYSE Arca
proposes to amend this same sentence in both NYSE Arca Rule 9.4 and
NYSE Arca Equities Rule 9.4 to add the words ``or association'' after
the phrase ``national securities exchange,'' as an OTP Holder, OTP
Member or ETP Holder may be a member of a national securities
association (e.g., FINRA) whose rules contain appropriate restrictions
on its members' ability to vote uninstructed shares (as is the case
with FINRA Rule 2251).
2. Statutory Basis
NYSE Arca believes that the proposed rule change is consistent with
the provisions of Section 6 of the Exchange Act,\6\ in general and with
Section 6(b)(10) \7\ of the Exchange Act, in particular. Specifically,
NYSE Arca believes the proposed rule change is consistent with the
requirements of Section 6(b)(10) that all national securities exchanges
adopt rules prohibiting members from voting, without receiving
instructions from the beneficial owner of shares, on the election of a
member of a board of directors of an issuer (except for a vote with
respect to the uncontested election of a member of the board of
directors of any investment company registered under the Investment
Company Act of 1940), executive compensation, or any other significant
matter, as determined by the Commission, by rule. The Exchange also
believes that the proposed rule change is consistent with the
requirements under Section 6(b)(5) \8\ that an exchange have rules that
are designed to prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, to remove
impediments to, and perfect the mechanism of a free and open market
and, in general, to protect investors and the public interest. The
Exchange is adopting this proposed rule change to comply with the
requirements of Section 957 of the Dodd-Frank Act, and therefore
believes the proposed rule change to be consistent with the Exchange
Act, particularly with respect to the protection of investors and the
public interest. NYSE Arca believes that the proposed amendment to NYSE
Arca Rule 9.4 and NYSE Arca Equities Rule 9.4 to provide that an OTP
Holder or OTP Firm (in the case of NYSE Arca Rule 9.4) or ETP Holder
(in the case of NYSE Arca Equities Rule 9.4) may only follow the rules
of another SRO in voting shares if, in doing so, its records clearly
indicate the procedures it is following, is consistent with the
requirements under Section 6(b)(5) in that it will protect investors by
requiring brokers to maintain adequate records when they vote
uninstructed shares.
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\6\ 15 U.S.C. 78f.
\7\ 15 U.S.C. 78f(b)(10).
\8\ 15 U.S.C. 78f(b)(5).
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NYSE Arca believes that the proposed amendment to NYSE Arca
Equities Rule 9.4 to delete the specific prohibition in that rule with
respect to ETP Holders voting uninstructed shares on any equity
compensation proposal is consistent with the requirements under Section
6(b)(5) in that NYSE Arca Equities Rule 9.4 generally prohibits ETP
Holders from voting shares held on behalf of a beneficial owner except
pursuant to the instructions of such beneficial holder and proposed
Commentary .01 to NYSE Arca Equities Rule 9.4 would specifically
prohibit ETP Holders from voting without such instructions on any
proposal relating to executive compensation, or any other significant
matter, as determined by the Commission, NYSE Arca also believes that
the proposed amendment is consistent with the requirements under
Section 6(b)(10) in that the specific prohibitions required by Section
957 of the Dodd-Frank Act will be included in NYSE Arca Equities Rule
9.4 as amended.
NYSE Arca believes that the following proposed minor amendments are
[[Page 3831]]
consistent with the requirements under Section 6(b)(5) in that they are
simply clarifications of the rule text without any substantive effect:
(i) The proposed amendment to subparagraph (7) of NYSE Arca Equities
Rule 5.3(d), which simply corrects a cross-reference to reflect the
proposed amendment to NYSE Arca Equities Rule 9.4; (ii) the addition of
the words ``or authorize'' or ``or authorizing'' in certain places in
NYSE Arca Rule 9.4 and NYSE Arca Equities Rule 9.4; (iii) the proposed
replacement of references to ``actual'' owners in certain places in
NYSE Arca Rule 9.4 and NYSE Arca Equities Rule 9.4 by references to
``beneficial'' owners; and (iv) the amendment to NYSE Arca Rule 9.4 and
NYSE Arca Equities Rule 9.4 to state that an OTP Holder or OTP Firm or
ETP holder, as applicable, may vote shares when permitted to do so
pursuant to the rules of another national securities exchange of which
he or his firm is ``a member'' rather than one to which he or his firm
``is responsible.''
NYSE Arca believes that the proposed addition of the words ``or
association'' after the phrase ``national securities exchange'' in NYSE
Arca Rule 9.4 and NYSE Arca Equities Rule 9.4 is consistent with the
requirements under Section 6(b)(5) in that it simply recognizes that
national securities associations may have rules governing the voting of
shares by their broker-dealer members (such as FINRA Rule 2251)
comparable to those of national securities exchanges.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is 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 solicited or received with respect to the
proposed rule change.
III. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change, as amended, 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-NYSEArca-2012-02 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-NYSEArca-2012-02. 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
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal offices 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-NYSEArca-2012-02 and should
be submitted on or before February 15, 2012.
IV. Commission's Findings and Order Granting Accelerated Approval of
the Proposed Rule Change
In its filing, NYSE Arca requested that the Commission approve the
proposal on an accelerated basis so that the Exchange could immediately
comply with the requirements imposed by the Dodd-Frank Act. After
careful consideration, the Commission finds that the proposed rule
change is consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities exchange.\9\
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\9\ In approving this rule change, the Commission notes that it
has considered the proposed rule's impact on efficiency,
competition, and capital formation. See 15 U.S.C. 78c(f).
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The Commission believes that the proposal is consistent with
Section 6(b)(10) \10\ of the Act, which requires that national
securities exchanges adopt rules prohibiting members that are not
beneficial holders of a security from voting uninstructed proxies with
respect to the election of a member of the board of directors of an
issuer (except for uncontested elections of directors for companies
registered under the Investment Company Act), executive compensation,
or any other significant matter, as determined by the Commission by
rule. The Commission also believes that the proposal is consistent with
Section 6(b)(5) \11\ of the Act, which provides, among other things,
that the rules of the Exchange must be designed to promote just and
equitable principles of trade, 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 are not
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
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\10\ 15 U.S.C. 78f(b)(10).
\11\ 15 U.S.C. 78f(b)(5).
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The Commission believes that the proposal is consistent with
Section 6(b)(10) of the Act because it adopts revisions that comply
with that section. As noted in the accompanying Senate Report, Section
957, which adopts Section 6(b)(10), reflects the principle that ``final
vote tallies should reflect the wishes of the beneficial owners of the
stock and not be affected by the wishes of the broker that holds the
shares.'' \12\ The proposed rule change will make the Exchange
compliant with the new requirements of Section 6(b)(10) by specifically
prohibiting, in Commentary language to each NYSE Arca Rule 9.4 and NYSE
Arca Equities Rule 9.4, OTP Holder or OTP Firm (in the case of NYSE
Arca 9.4) or ETP Holder (in the case of NYSE Arca Equities Rule 9.4),
who are not a beneficial owner of a security, from granting a proxy to
vote the security in connection with a shareholder vote on the election
of a member of the board of directors of an issuer (except for a vote
with respect to the uncontested election of a member of the board of
directors of any investment company registered under the Investment
Company Act of 1940), executive compensation, or any other significant
matter, as determined by the
[[Page 3832]]
Commission by rule, unless the beneficial owner of the security has
instructed the member to vote the proxy in accordance with the voting
instructions of the beneficial owner.\13\
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\12\ See S. Rep. No. 111-176, at 136 (2010).
\13\ The Commission has not, to date, adopted rules concerning
other significant matters where uninstructed broker votes should be
prohibited, although it may do so in the future. Should the
Commission adopt such rules, we would expect NYSE Arca to adopt
coordinating rules promptly to comply with the statute.
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The Commission believes that the proposal is consistent with
Section 6(b)(5) of the Act because the proposal will further investor
protection and the public interest by assuring that shareholder votes
on the election of the board of directors of an issuer (except for a
vote with respect to the uncontested election of a member of the board
of directors of any investment company registered under the Investment
Company Act of 1940) and on executive compensation matters are made by
those with an economic interest in the company, rather than by an OTP
Holder, OTP Firm, or ETP holder that has no such economic interest,
which should enhance corporate governance and accountability to
shareholders.\14\
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\14\ As the Commission stated in approving NYSE rules
prohibiting broker voting in the election of directors, having those
with an economic interest in the company vote the shares, rather
than the broker who has no such economic interest, furthers the goal
of enfranchising shareholders. See Securities Exchange Act Release
No. 60215 (July 1, 2009), 74 FR 33293 (July 10, 2009) (SR-NYSE-2006-
92).
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In addition to incorporating the provisions of Section 6(b)(10),
the Exchange proposes deleting from NYSE Arca Equities Rule 9.4 the
specific prohibition in that rule with respect to ETP Holders voting
uninstructed shares on any equity compensation proposal. The Commission
believes that this provision is no longer necessary because NYSE Arca
Equities Rule 9.4 generally prohibits ETP Holders from voting any
uninstructed shares, including on equity compensation matters. The
Commission further notes that the new proposed Commentary to NYSE
Arca's Equities Rule 9.4 prohibiting uninstructed broker votes on
executive compensation covers the specific items identified in Section
951 of the Dodd-Frank Act as well as any other matter concerning
executive compensation, and has been drafted broadly to reflect the
requirements of Section 6(b)(10) of the Act. The Commission also notes
that to the extent NYSE Arca has any past practice or interpretation
that may have permitted an ETP Holder to vote on certain equity
compensation plans, under its existing rule, this will no longer be
applicable and is superseded by the newly adopted provisions.
The Commission notes that NYSE Arca has proposed to amend NYSE Arca
Rule 9.4 and NYSE Arca Equities Rule 9.4 to provide that OTP Holders,
OTP Firms, or ETP Holders may only follow the rules of another self-
regulatory organization in voting shares if its records clearly
indicate the procedures it is following. The Commission believes that
this will help to ensure that any broker voting that is permitted is
pursuant to approved rules of another self-regulatory organization.
The Commission notes that the Exchange has also proposed to make
certain clarifications to its rules, which include: amending
subparagraph (7) of NYSE Arca Equities Rule 5.3(d) to cross-reference
to NYSE Arca Equities Rule 9.4; replacing references to ``actual''
owners with ``beneficial'' owners in certain places in NYSE Arca Rule
9.4 and NYSE Arca Equities Rule 9.4; and amending NYSE Arca Rule 9.4
and NYSE Arca Equities Rule 9.4 to state that an OTP Holder or OTP Firm
or ETP Holder, as applicable, may vote shares when permitted to do so
pursuant to the rules of another national securities exchange of which
he or his firm is ``a member'' rather than one to which he or his firm
``is responsible.'' The Commission believes that these clarifications
are technical in nature and should provide greater transparency in
Exchange's rules and help avoid confusion.
The Commission further notes that the Exchange added ``or
association'' to NYSE Arca Rule 9.4 and NYSE Arca Equities Rule 9.4 so
that an OTP Holder, OTP Firm, or ETP Holder, as applicable, would be
prohibited from giving a proxy to vote, unless pursuant to the rules of
any national securities exchange or association of which it is a
member. The Commission believes that this is appropriate since OTP
Holders, OTP Firms, or ETP Holders are members of FINRA, a national
securities association that also has restrictions on broker voting.\15\
Finally, the Commission notes that the change to reflect that NYSE Arca
rules prohibit not only the giving of a proxy, but also the
authorization of the proxy, should help to clarify the intent of NYSE
Arca proxy rules and is consistent with the requirements of Section 6
of the Act.
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\15\ See FINRA Rule 2251. In addition, the Commission notes that
the addition of ``or association'' to NYSE Arca Rule 9.4 and NYSE
Arca Equities Rule 9.4 is consistent with ISE Rule 421 and BATS-Y
Exchange, Inc. Rule 13.3(b). See Securities Exchange Act Releases
Nos. 63139 (October 20, 2010), 75 FR 65680 (October 26, 2011) (SR-
ISE-2010-99) and 65448 (September 30, 2011), 76 FR 62103 (October 6,
2011) (SR-BYX-2011-024).
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Based on the above, the Commission finds that the NYSE Arca
proposal will further the purposes of Sections 6(b)(5) and 6(b)(10) of
the Act because it should enhance corporate accountability to
shareholders while also serving to fulfill the Congressional intent in
adopting Section 6(b)(10) of the Act.
The Commission also finds good cause, pursuant to Section 19(b)(2)
of the Act,\16\ for approving the proposed rule change prior to the
30th day after the date of publication of notice in the Federal
Register. Section 6(b)(10) of the Act, enacted under Section 957 of the
Dodd-Frank Act, does not provide for a transition phase, and requires
rules of national securities exchanges to prohibit broker voting on the
election of a member of the board of directors of an issuer (except for
a vote with respect to the uncontested election of a member of the
board of directors of any investment company registered under the
Investment Company Act of 1940), executive compensation, or any other
significant matter, as determined by the Commission by rule. The
Commission believes that good cause exists to grant accelerated
approval to the Exchange's proposal, because it will conform the
Exchange's rules to the requirements of Section 6(b)(10) of the Act.
Moreover, the Commission notes that the Exchange's proposed
Commentaries to NYSE Arca Rule 9.4 and NYSE Arca Equities Rule 9.4 are
identical to Nasdaq Rule 2251(d), which was previously approved by the
Commission.\17\ Finally, as noted above, the Exchange's proposed
changes to NYSE Arca Rule 9.4 and NYSE Arca Equities Rule 9.4 are
consistent with rules of other national securities exchanges, provide
clarity and transparency in the Exchange's rules, and raise no new
regulatory issues. Based on the above, the Commission believes the
Exchange's proposed rule change raises no new regulatory issues, and
therefore finds good cause to accelerate approval.
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\16\ 15 U.S.C. 78s(b)(2).
\17\ See Securities Exchange Act Release No. 62992 (September
24, 2010), 75 FR 60844 (October 1, 2010) (SR-Nasdaq-2010-114).
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V. Conclusion
It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\18\ that the proposed rule change (SR-NYSEArca-2012-02) be, and it
hereby is, approved on an accelerated basis.
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\18\ 15 U.S.C. 78s(b)(2).
\19\ 17 CFR 200.30-3(a)(12).
[[Page 3833]]
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For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-1444 Filed 1-24-12; 8:45 am]
BILLING CODE 8011-01-P