[Federal Register Volume 76, Number 43 (Friday, March 4, 2011)]
[Notices]
[Pages 12180-12191]
[FR Doc No: 2011-4898]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-63981; File No. SR-Phlx-2011-13]

Self-Regulatory Organizations; Notice of Filing of Proposed Rule
Change by NASDAQ OMX PHLX LLC Relating to Amendments to NASDAQ OMX PHLX
LLC's Limited Liability Company Agreement, By-Laws, Rules, Advices and
Regulations

February 25, 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 16, 2011, NASDAQ OMX PHLX LLC (``Phlx'' 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.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange, pursuant to Section 19(b)(1) of the Act\3\ and Rule
19b-4 thereunder,\4\ proposes to: (1) Amend the Limited Liability
Company Agreement and By-Laws to substantially conform to NASDAQ Stock
Market's [sic] Second Amended Limited Liability Company Agreement and
By-Laws; (2) eliminate the Series A Preferred Shareholder and adopt
NASDAQ Stock Market LLC's board structure and committees; (3) eliminate
foreign currency option participations; (4) eliminate former
definitions, rules and references to XLE; and (5) amend other terms,
names, cross-references and make technical and grammatical changes to
clarify and simplify the By-Laws, Rules, Option Floor Procedure
Advices, Equity Floor Procedure Advices (collectively ``Advices'') and
Regulations of the Exchange.
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    \3\ 15 U.S.C. 78s(b)(1).
    \4\ 17 CFR 240.19b-4.
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    The text of the proposed rule change is available on the Exchange's
Web site at http://www.nasdaqtrader.com/micro.aspx?id=PHLXRulefilings,
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
    The purpose of the proposed rule change is to amend the Exchange's
Limited Liability Company Agreement (``LLC Agreement'') By-Laws, Rules,
Advices and Regulations to mirror that of the NASDAQ Stock Market LLC
to create a more streamlined governance process, while also making
other non-substantive conforming amendments, including technical
amendments.
Limited Liability Company Agreement
    The Exchange is proposing to amend the current LLC Agreement to a
First Amended LLC Agreement. The Exchange has amended the recitals to
state that the Board of Governors desires to eliminate the Series A
Preferred Stock and amend and restate the LLC Agreement in its
entirety.
    In Section 1 titled Name; Conversion, the Exchange is proposing to
delete paragraph 2 which references the recent conversion from a
Delaware corporation to a Delaware limited liability company. This
language was previously necessary to conform the old text to the
limited liability company agreement Delaware Act requirements, but is
no longer necessary in the amended and restated version of the LLC
Agreement.
    In Section 2, titled Principal Business Office, the Exchange is
proposing to rename the Board of Governors the Board of Directors. The
Exchange is proposing to utilize the same Board title as in the NASDAQ
Stock Market LLC Agreement.\5\ The Exchange proposes this amendment
throughout the LLC Agreement.
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    \5\ See Second Amended Limited Liability Co. Agreement of the
NASDAQ Stock Market LLC.
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    In Section 4 titled Members, the Exchange is proposing to amend the
language to refer to a single Stockholder and to eliminate language
related to the recent LLC conversion and add language indicating that
one Stockholder remains the same, The NASDAQ OMX Group, Inc.
Series A Preferred Share Elimination
    The Exchange is proposing to amend the Exchange's formation
documents to eliminate the Series A Preferred Share. The NASDAQ OMX
Group, Inc. would be the only Shareholder of NASDAQ OMX PHLX LLC. In
2003, the Philadelphia Stock Exchange, Inc. (now NASDAQ OMX PHLX LLC)
filed with the Securities and Exchange Commission to amend its
formation documents to form a demutualized Delaware stock
corporation.\6\ At that time, the Exchange amended its Certificate of
Incorporation to designate one share of preferred stock as the ``Series
A Preferred Stock.'' The Series A Preferred Stock had the sole power
to: (i) Select the On-Floor Governors, and (ii) remove the On-Floor
Governors in accordance with specified procedures in connection with
the removal of Governors.\7\ Since that time, the Exchange's formation
documents have been amended so that today, the Series A Preferred
Stockholder is the sole preferred shareholder of the Exchange. The
Series A Preferred Shareholder today elects the Member Governor and
Designated Independent Governor pursuant to Section 16 of the LLC
Agreement and Article IV of the By-Laws.
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    \6\ See Securities Exchange Act Release No. 49098 (January 16,
2004), 69 FR 3974 (January 27, 2004) (Sr-Phlx-2003-73).
    \7\ See Securities Exchange Act Release No. 49098 (January 16,
2004), 69 FR 3974 (January 27, 2004) (SR-Phlx-2003-73).
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    At the time of demutualization, a Trust Agreement was created and
the Series A Preferred Stock was held by the Trust.\8\ Pursuant to the
Amended Trust Agreement, the Trustee of the Trust has the power to vote
the share of Series A Preferred Stock with respect to the designated
nominees, which includes the Member Governor and the Designated
Independent Governor, as directed by the vote of the Member
Organization Representatives of Member Organizations entitled to vote
pursuant to Article III of the By-Laws.
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    \8\ Currently, the Series A Preferred Stock is still held by the
PHLX Member Voting Trust pursuant to a Third Amended and Restated
Trust Agreement dated February 22, 2007 (``Amended Trust
Agreement'').
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    The single share of the Series A Preferred Stock, issued to the
Trust governed by the Amended Trust Agreement, is designed to
facilitate the exercise by Members and Member Organizations of their
rights to fair representation in the selection and removal of certain
Governors of the Exchange and to facilitate the administration of the
affairs of the Exchange in accordance with the Act. This voting
arrangement, implemented through the Amended Trust Agreement and the
Series A Preferred Stock, is designed to give ``members'' (as defined
in Section 3(a)(3)(A) of the Act) a voice in the management of the
Exchange. These arrangements were considered necessary at the time of
demutualization for two reasons: (i) Under Delaware law, only
stockholders can elect the directors of a Delaware corporation; and
(ii) after the demutualization, Members and Member Organizations that
were not Owners at the time of the demutualization were not
stockholders of the Exchange. This is no longer the case. Today, the
Exchange is a wholly-owned subsidiary of The NASDAQ OMX Group, Inc.
Since the acquisition of the former Philadelphia Stock Exchange, Inc.
by The NASDAQ OMX Group, Inc. there are no longer any other common
shareholders of what is now known as NASDAQ OMX PHLX LLC. Also, the
Exchange is no longer a corporation subject to Delaware corporate law.
    The Exchange believes that its proposed board structure and
election process, identical to that of the NASDAQ Stock Market LLC,
would provide Members and Member Organizations fair representation in
the selection and removal of certain Governors of the Exchange in
accordance with the Act. The Exchange is not proposing to amend its By-
Laws with respect to the nomination of Governors, now proposed to be
Directors, which process is currently the same as that of NASDAQ Stock
Market LLC. Rather, the Exchange is proposing to eliminate the
mechanism that the Series A Preferred Stock was designed to facilitate.
The Exchange would continue to accept nominations from Members and
Member Organizations for certain Board positions which will be
explained in greater detail below. The Exchange does not believe the
Series A Preferred mechanism is necessary and therefore proposes to
eliminate such mechanism in favor of the structure currently utilized
by the NASDAQ Stock Market LLC.
    In Section 5, titled Certificates, the Exchange proposes to change
the title Board of Governors to Board of Directors. In Section 6,
titled Purpose, the Exchange proposes to adopt the language that is
contained in the formation documents of the NASDAQ Stock Market LLC.\9\
In Section 7, titled Powers, the Exchange is proposing to change the
title Board of Governors to Board of Directors.
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    \9\ See Section 7 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
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    In Section 8, titled Management, the Exchange is proposing to
mirror the board structure of NASDAQ Stock Market LLC.\10\ As
previously stated, the Exchange proposes to rename the Board of
Governors, the Board of Directors. The Directors shall remain
``managers'' within the meaning of the LLC Act without change. The
authorized number

of Directors shall be at the discretion of the Stockholder as opposed
to the Board.\11\
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    \10\ See Section 9 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
    \11\ See By-Law Article IV, Section 4-1.
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    The Exchange is proposing to add language to indicate that the
Stockholder may determine at any time and in its sole and absolute
discretion the number of Directors to constitute the Board. The
authorized number of Directors may be increased or decreased by the
Stockholder at any time in its sole and absolute discretion, upon
notice to all Directors, but no decrease in the number of Directors
shall shorten the term of any incumbent Member Representative Director.
This language mirrors that of the NASDAQ Stock Market LLC.\12\
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    \12\ See Section 9 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
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    The Exchange proposes, similar to NASDAQ Stock Market LLC, that at
least twenty percent of the Directors shall be Member Representative
Directors. All Directors other than the Member Representative Directors
shall be elected by the Stockholder as described in the By-Laws, which
will be discussed below. Currently, a number of Designated Independent
Governors, together with the Member Governors, shall equal at least
twenty percent of the total number of Governors who are elected by the
Series A Preferred Shareholder.\13\ The Exchange is not proposing to
amend the process by which members may nominate candidates to the
Board.\14\ The process by which board members are elected is the same
process that exists today for the NASDAQ Stock Market LLC.
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    \13\ See LLC Agreement at Section 8.
    \14\ Pursuant to newly renumbered proposed By-Law Article II,
Section 2-1, an additional candidate may be added to the List of
Candidates by a Member that submits a timely and duly executed
written nomination to the Secretary of the Exchange. The Exchange
provides Members procedures to nominate candidates at each annual
meeting. See By-Law Article II, Section 2-1(a).
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    Each Director elected, designated or appointed by the Stockholder
shall hold office until a successor is elected and qualified or until
such Director's earlier death, resignation, expulsion or removal.\15\
Similar to the NASDAQ Stock Market LLC provisions, each Director shall
execute and deliver an instrument accepting such appointment and
agreeing to be bound by all terms and conditions of the LLC Agreement
and the By-Laws.\16\ Also, a Director need not be a member of the
Exchange.\17\
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    \15\ See By-Law Article IV, Section 4-3, currently Governors are
elected for one year.
    \16\ See Section 9 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
    \17\ See Section 9 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
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    The Exchange is also proposing to adopt the exact verbiage of
Section 9 of the Second Amended Limited Liability Co. Agreement of the
NASDAQ Stock Market LLC with respect to Powers of the Board, the By-
Laws, Meeting of the Board of Directors, Quorum; LLC Acts of the Board
and Electronic Communications.\18\ The section discussing Powers of the
Board is similar to the current provisions in Article IV, Section 4-4
and Section 8(b) of the LLC Agreement in that the Board of Governors is
currently vested with the ability to act for the management of the
business and affairs of the Exchange. They also have the power to bind
the Exchange and delegate powers.\19\ The Exchange previously adopted
its By-Laws.\20\
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    \18\ See proposed text at Section 8 of the Exchange's LLC
Agreement at (b)-(f).
    \19\ See By-Law Article IV, Section 4-4.
    \20\ See LLC Agreement at Section 8(d).
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    The Meetings of the Board are similar to the provision in By-Law
Article IV, Sections 4-10, 4-11 and 4-14. The proposed quorum rules are
similar to By-Law Article IV, Section 4-9 and 4-16. Electronic
Communications are similar to By-Law Article IV, Section 4-22.
    The Exchange proposes to amend its current Standing Committees at
By-Law Article X and instead adopt Standing Committees similar to
NASDAQ Stock Market LLC. Currently, the Standing Committees of the
Exchange are: an Executive Committee, a Regulatory Oversight Committee,
a Business Conduct Committee, a Nominating Committee, a Member
Nominating Committee, a Quality of Markets Committee, and an Options
Trade Review Committee, and may also include a Finance Committee and
such other committees as the Board of Governors shall by resolution
establish.
    Each of such Committees is currently composed of not more than nine
(9) members, including ex-officio members, except for the Options Trade
Review Committee which may be composed of 20 members. Currently, the
Chair of each Standing Committee must be a member of the Board of
Governors and at least one other person on each Committee must be a
Governor, except for the Options Trade Review Committee. All committee
members are appointed by the Board of Governors.
    Currently, all committee appointments are made as promptly as
possible after each annual meeting of Stockholders, and each appointee
serves for one year or until his successor is duly appointed. The
members of the Options Trade Review Committee are appointed for terms
of no more than three years, subject to reappointment by the Board.
    The Exchange proposes to replace these rules with ``Committees
Composed Solely of Directors'' and ``Committees Not Composed Solely of
Directors'' at newly proposed and named Article V. The details of those
committees shall be discussed below in the By-Law section.
    The Exchange is proposing that the Board may designate one or more
Directors as alternate members of any committee who may replace any
absent or disqualified member at any meeting of the committee. The
Committee members shall hold office for such period as may be fixed by
a resolution adopted by the Board. Any member of a committee may be
removed from such committee only by the Board. Vacancies shall be
filled by the Board. Similar to By-Law Article X, Section 10-2, each
committee may adopt its own rules of procedure and may meet at stated
times or on such notice as such committee may determine. Each committee
shall be required to keep regular minutes of its meetings and report
the same to the Board when required.
    Similar to By-Law Article X, Section 10-3, a majority of the
committee shall constitute a quorum and the vote of a majority present
shall be an act of the committee. A new provision proposes to the
extent provided in the resolution of the Board, any committee that
consists solely of one or more Directors shall have and may exercise
all the powers and authority of the Board in the management of the
business and affairs of the Exchange. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the Board. Further, in the absence or
disqualification of a member of a committee composed solely of
Directors, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such members constitute a
quorum, may unanimously appoint another member of the Board to act at
the meeting in the place of any such absent or disqualified member.
    Similar to By-Law Article IV, Section 4-5, the Compensation of
Directors, Expenses shall be fixed by the Board. This language mirrors
that of the NASDAQ Stock Market LLC.\21\ The

Removal and Resignation of Directors language is also identical to the
NASDAQ Stock Market LLC and By-Law Article IV, Sections 4-4, 4-6 and
the LLC Agreement at Section 8(f). The Directors as Agent language is
currently contained in the Exchange's LLC Agreement at Section 8(e).
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    \21\ See Section 9 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
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    Section 9, titled Officers, the Exchange proposes to adopt the
Appointment provisions of NASDAQ Stock Market LLC,\22\ which provisions
are similar in nature to the existing provisions of Section 9(a) of the
LLC Agreement. The terms ``Governor'' would be replaced with
``Director'' in Section 9(c) and in Section 10, titled Limited
Liability.
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    \22\ See Section 10 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
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    Section 11, titled Capital Contributions, the Exchange is
reflecting the proposed elimination of the Series A Preferred
Shareholder in the text. Section 12, titled Additional Contributions,
the Exchange is revising the text to mirror that of the NASDAQ Stock
Market LLC.\23\ Section 13, titled Allocation of Profits and Losses,
remains unchanged. Section 14, titled Distributions, the Exchange is
once again mirroring the language of the NASDAQ Stock Market LLC.\24\
The Distribution language is not altogether different from the existing
language and will solely impact the Shareholder, The NASDAQ OMX Group,
Inc. In Section 15, titled Books and Records, the Exchange
substantially mirrors the language of NASDAQ Stock Market LLC except
that the provision ``within the United States'' was added.\25\
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    \23\ See Section 13 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
    \24\ See Section 15 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
    \25\ See Section 16 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
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    Section 16, titled Reports, is new to the Exchange's LLC Act and is
being added to mirror the language of the NASDAQ Stock Market LLC.\26\
Section 17, titled Limited Liability Company Interests, the Exchange is
removing the references to the Series A Preferred Shareholder as
described herein. The Exchange is proposing language to cancel the
existing Series A Preferred Stock. Section 18, titled Other Business,
the Exchange is proposing to mirror the language of the NASDAQ Stock
Market LLC.\27\ The language is substantially similar to the language
currently in Section 17.
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    \26\ See Section 17 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
    \27\ See Section 18 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
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    Section 19, Exculpation and Indemnification, the Exchange is
proposing to once again mirror the language of the NASDAQ Stock Market
LLC.\28\ The language is substantially similar to the language
currently in Section 18. Section 19, titled Assignment, the Exchange
proposes to allow assignments to affiliates of the member. The
reference to Section 20 would be deleted. Section 21, titled
Dissolution, is amended to mirror the language of the NASDAQ Stock
Market LLC.\29\ The language is substantially similar to the language
currently in Section 21.
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    \28\ See Section 19 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
    \29\ See Section 21 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
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    Section 22, titled Benefits of Agreement; No Third-Party Rights,
seeks to eliminate references to the Series A Preferred Shareholder as
described herein as does Section 25, titled Binding Agreement.\30\ The
Exchange is not proposing amendments to Sections 23, titled
Severability of Provisions, 24, titled Entire Agreement or 26, titled
Governing Law.
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    \30\ Sections 22-28 of the LLC Agreement are renumbered in the
proposal. All references are to the current section numbers.
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    Minor amendments are proposed to Section 25, titled Binding
Agreement, to account for only one proposed Stockholder. Section 27,
titled Amendments, would be amended to mirror the language of the
NASDAQ Stock Market LLC.\31\ Section 28, titled Notices, would be
amended to mirror the language of the NASDAQ Stock Market LLC.\32\
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    \31\ See Section 27 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
    \32\ See Section 28 of the Second Amended Limited Liability Co.
Agreement of the NASDAQ Stock Market LLC.
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    The Exchange proposes to add a new Schedule A to the LLC Agreement
to define certain new terms, namely: ``LLC Act'', ``Affiliate'',
``Agreement'', ``Bankruptcy'', ``Board'', ``By-Laws'', ``Certificate of
Formation'', ``Covered Persons'', ``Directors'', ``Exchange'',
``Exchange Act'', ``Member Organization'', ``Member Representative
Director'', ``Officer'', ``Person'', ``Regulatory Fund'' and
``Stockholder'' for ease of reference. The Exchange also proposes a
section on rules of construction which further explain the definitions.
The definitions are only applicable to the LLC Agreement. Previous
Schedule A is now Schedule B and is amended to eliminate the reference
to the PHLX Member Voting Trust as discussed herein.
By-Laws
    The Exchange is proposing to amend the By-Laws of the Exchange to
substantially mirror those of NASDAQ Stock Market LLC.
    In Article I, the Exchange proposes to reflect the proposed board
structure and add clarifying definitions. Specifically, the Exchange is
adding the following new definitions: ``Act'', ``Associated Person or
Person Associated with a Member Organization'', ``Board or Board of
Directors'', ``Director'', ``Election Date'', ``Executive
Representative'', ``FINRA'', ``Industry Director'', ``Member
Representative Director'', ``Non-Industry Director'', ``Public
Director'', ``Statutory Disqualification'' and ``Stockholder
Director''. The specific board designations will be discussed below.
    The Exchange is proposing to delete certain definitions that
reference the current board structure, which the Exchange is proposing
to change, and other obsolete terms. Specifically, the Exchange is
proposing to delete the following definitions: ``Approved Lessor'',
``Designated Governor'', ``Designated Independent Governors'',
``Foreign Currency Options Participation'', ``Foreign Currency Options
Participant or Participant'', ``Foreign Currency Options Participant
Organization'', ``Governor'', ``Independent'', ``Independent
Governor'', ``Lessee'', ``Lessor'', ``Material Relationship'', ``Member
Governor'', ``Member Organization Representative'', ``Owner'', ``Trust
Agreement'', ``Series A Preferred Stock'', ``Stockholder Governor'',
``Preferred Stock'', and ``Trust''. The Exchange is proposing to delete
the Governor and Trust designations related to the Board in connection
with the proposed board structure. The Exchange is also proposing to
eliminate foreign currency option participations.
Foreign Currency Option Participations
    In 1982, the Exchange filed a proposal concerning access to the
Exchange's foreign currency options market.\33\ The Exchange at that
time indicated that such access to the Exchange's foreign currency
options market would be available to those who have purchased a foreign
currency options participation

(``FCO Participation''). Non-members were admitted to the Exchange as
foreign currency option participants (``FCO Participants'') by the
Admission Committee by completing an application process similar to
that utilized when Exchange membership was sought.\34\ The initial
offering period began on January 25, 1982 and extended through the last
business day preceding the first day of foreign currency options
trading on the Exchange.\35\
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    \33\ See Securities Exchange Act Release No. 19134 (October 14,
1982), 47 FR 46949 (October 21, 1982) (SR-Phlx-82-5).
    \34\ See Securities Exchange Act Release No. 19134 (October 14,
1982), 47 FR 46949 (October 21, 1982) (SR-Phlx-82-5).
    \35\ See Securities Exchange Act Release No. 19134 (October 14,
1982), 47 FR 46949 (October 21, 1982) (SR-Phlx-82-5).
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    Currently, the holder of an FCO Participation is entitled to enter
into foreign currency options transactions on the Exchange. FCO
Participants and the organizations upon which they confer foreign
currency options trading privileges are subject to all the provisions
of the Exchange Rules that are applicable to Members and Member
Organizations and to many provisions of Exchange's By-Laws.
    In 2003, the Exchange filed to demutualize the Exchange. At the
time of demutualization, the Exchange proposed that access to the
Exchange facilities and the right to trade will be conferred by newly-
issued permits rather than by ownership or leasing of seats of the
Exchange.\36\ Trading of foreign currency options continued to be
allowed through the FCO Participations, but, after demutualization,
such trading of FCOs were permitted through permits.\37\
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    \36\ See Securities Exchange Act Release No. 48847 (November 26,
2003), 68 FR 67720 (December 3, 2003) (SR-Phlx-2003-73).
    \37\ See Exchange Rule 908. The Series A-1 permit allows members
to trade FCOs.
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    The Exchange currently does not have any persons who are FCO
Participants.\38\ The Exchange does not believe such participations are
necessary in light of the ability to gain access to the Exchange with a
permit. The Exchange is proposing to eliminate FCO Participations at
this time. Specifically, the Exchange proposes to delete all references
to FCO Participations, participants, participant organizations, seat
leases, owners and lessors.
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    \38\ Today Members trade foreign currency utilizing a Series A-1
permit.
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    In Article II, the Exchange proposes to delete By-Law Sections 2-1
titled Registered Office and Registered Agent and By-Law Section 2-2
titled Other Offices. The Exchange states its registered office in the
Certificate of Formation and LLC Agreement at By-Law Section 3. The
Exchange proposes to rename Article II ``Annual Election of Member
Representative Directors and Other Actions By Members.'' The Exchange
proposes to mirror the provisions of the NASDAQ Stock Market LLC's
Second Amended Limited Liability Company Agreement at Article II. The
Exchange is proposing to add the following provisions to Article II:
By-Law Section 2-1 titled Record and Election Date; By-Law Section 2-2
titled Voting, By-Law Section 2-3 titled Filling of Vacancies; and By-
Law Section 2-4 titled Member Meetings.
    Proposed By-Law Section 2-1 concerning the Record and Election Date
would replace the following current By-Law Sections, which are proposed
to be deleted: By-Law Sections 3-2 and 3-15. The language contained in
proposed By-Law Section 2-1 is substantially similar to the language in
current By-Law Section 3-2. Proposed Section 2-2 concerning voting
contains similar language to current By-Law Sections 3-7 and 3-12.
Proposed By-Law Section 2-3 concerning vacancies, which allows for an
Exchange Member to fill the vacancy, would replace current By-Law
Section 4-7, which provides for a majority vote by the Board of
Governors. Proposed By-Law Section 2-4 titled Member Meetings states
that the Exchange shall not be required to hold member meetings.
Proposed By-Law Section 2-4 would replace current By-Law Sections 3-1
and 3-11, which sections presuppose member meetings.\39\
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    \39\ With respect to the election of the Member Representative
Director, the process remains substantially unchanged. In the
uncontested election, newly proposed By-Law Section 2-1(d) provides
the Stockholder elects from the List of Candidates, specifically the
Member Representative Directors shall be elected by the Stockholder
from the List of Candidate; uncontested would be where there is only
one candidate for each Member Representative Director position. In a
contested election newly proposed By-Law Section 2-2 provides that
the Stockholder shall elect the persons on the List of Candidates
who receive the most votes, where the Members have the right to cast
one vote for each Member Representative Director position to be
filled.
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    In Article III, the Exchange is proposing to delete various By-Laws
and replace them with the By-Laws similar to those of NASDAQ Stock
Market LLC's Second Amended Limited Liability Company Agreement at
Article III. The title to Article III captioned Member and Member
Organization Nominations-Member and Member Organization Annual
Elections--Member and Member Organizations Meetings is being deleted.
The Exchange is deleting By-Law Section 3-1 titled Place of Member and
Member Organization Meetings, which By-Law is replaced by By-Law
Section 2-4. The Exchange is deleting By-Law Section 3-2 titled Annual
Selection of Designated Governors which is replaced by proposed By-Law
Section 2-1. The Exchange is deleting Section 3-3 titled Removal of
Designated Governors. This language would be replaced by proposed By-
Law Section 3-2. The Exchange is deleting current By-Law Sections 3-4
through 3-6, which are reserved. The Exchange is replacing current By-
Law Section 3-7 titled Election of Nominees for Designate [sic]
Governors In the Event of a Contested Vote, with proposed new By-Law
Section 2-2. The Exchange is deleting current By-Law Section 3-8 titled
Death, Withdrawal or Disqualification of Designated Nominees. A portion
of this By-Law is contained in proposed By-Law Section 2-1(c). The
Exchange is deleting By-Law Sections 3-9 and 3-10, which are reserved.
The Exchange is deleting current By-Law Section 3-11 titled Notice of
Member and Member Organization Meetings, as per proposed By-Law Section
2-4. The Exchange is deleting current By-Law 3-12 titled Vote of Member
Organizations, which is replaced by proposed By-Law Section 2-1. The
Exchange is deleting current By-Law Sections 3-13 titled Quorum of
Members and Member Organizations--Proxies and By-Law Section 3-14
titled Lists of Members and Member Organizations Entitled to Vote, as
per proposed By-Law Section 2-4. The process for voting is contained in
proposed By-Law Section 2-1. The Exchange is proposing to delete By-Law
Section 3-15 titled Determination of Record Dates, which is replaced by
proposed By-Law Section 2-1. The Exchange is deleting current By-Law
Section 3-16 titled Governance of Member and Member Organization
Meetings as per proposed By-Law Section 2-4.
    The Exchange is proposing to add similar By-Law Sections to newly
named Article III captioned ``Board of Directors,'' which mirror those
of NASDAQ Stock Market LLC's Second Amended Limited Liability Company
Agreement at Article III. The Exchange is proposing to add a new By-Law
Section 3-1 titled ``Selection; Term,'' which replaces current By-Law
Section 4-4 as described above and adds language to clarify that the
Directors shall serve for a one year term.\40\ The Exchange proposes a
new By-Law Section 3-2 titled ``Qualifications'' to replace current By-
Law Sections 4-1

and 4-4(c).\41\ The Exchange also proposes a new By-Law Section 3-3
titled ``Regulation,'' a proposed new By-Law Section 3-4 ``Conflicts of
Interest, Contracts and Transactions Involving Directors'' and proposed
new By-Law Section 3-5 ``Compensation of Board, Council, and Committee
Members.''
---------------------------------------------------------------------------

    \40\ See proposed By-Law Article III, Section 3-1(b).
    \41\ By-Law Article III, Section 3-2(b) contains newly proposed
language that would allow for removal of a director with cause (the
Director no longer satisfies the classification for which the
Director was elected or the Director's continued service as such
would violate the compositional requirements of the Board set forth
in Article III, Section 3-2(a)).
---------------------------------------------------------------------------

Board of Directors
    The Exchange is proposing to amend the qualifications for its
Board, which it proposes to rename ``Board of Directors.'' \42\
Currently, the Board of Governors is composed of the number of
Governors determined from time to time by the Board of Governors and
includes: one (1) Governor, who is the Chief Executive Officer; one (1)
Governor who is a Member Governor who meets the qualifications set
forth in By-Law Article I with respect to the Member Governor; one (1)
Governor who is a Stockholder Governor who meets the qualifications set
forth in By-Law Article I with respect to the Stockholder Governor; and
such additional Governors who are Independent Governors and meet the
qualifications set forth in By-Law Article I, fill the remaining seats
on the Board of Governors, including a number of Designated Independent
Governors, which, together with the Member Governor equal at least 20
percent of the total number of Governors.
---------------------------------------------------------------------------

    \42\ The Board is currently named the Board of Governors.
---------------------------------------------------------------------------

    The Exchange is proposing to replace this aforementioned Board
composition with the following: A Board comprised of a number of Non-
Industry Directors, including at least one Public Director and at least
one issuer representative (or if the Board consists of ten or more
Directors, at least two issuer representatives), which would equal or
exceed the sum of the number of Industry Directors and Member
Representative Directors to be elected under the terms of the LLC
Agreement. The Stockholder may determine at any time in its sole and
absolute discretion the number of Directors to constitute the Board.
The authorized number of Directors may be increased or decreased by the
Stockholder at any time in its sole and absolute discretion, upon
notice to all Directors, but no decrease in the number of Directors
would shorten the term of any incumbent Member Representative Director.
At least twenty percent (20%) of the Directors would be Member
Representative Directors. Each Director elected, designated or
appointed by the Stockholder would hold office until a successor is
elected and qualified or until such Director's earlier death,
resignation, expulsion or removal. A Director need not be a member of
the Exchange.\43\
---------------------------------------------------------------------------

    \43\ See Exchange's LLC Agreement Section 8(a).
---------------------------------------------------------------------------

    The Exchange proposes the following definitions below for the
various Director positions in Article I of the By-Laws. The term
``Industry Director'' shall mean a Director (excluding any two officers
of the Exchange, selected at the sole discretion of the Board, amongst
those officers who may be serving as Directors (the ``Staff
Directors'')), who (i) is or has served in the prior three years as an
officer, director, or employee of a broker or dealer, excluding an
outside director or a director not engaged in the day-to-day management
of a broker or dealer; (ii) is an officer, director (excluding an
outside director), or employee of an entity that owns more than ten
percent of the equity of a broker or dealer, and the broker or dealer
accounts for more than five percent of the gross revenues received by
the consolidated entity; (iii) owns more than five percent of the
equity securities of any broker or dealer, whose investments in brokers
or dealers exceed ten percent of his or her net worth, or whose
ownership interest otherwise permits him or her to be engaged in the
day-to-day management of a broker or dealer; (iv) provides professional
services to brokers or dealers, and such services constitute 20 percent
or more of the professional revenues received by the Director or 20
percent or more of the gross revenues received by the Director's firm
or partnership; (v) provides professional services to a director,
officer, or employee of a broker, dealer, or corporation that owns 50
percent or more of the voting stock of a broker or dealer, and such
services relate to the director's, officer's, or employee's
professional capacity and constitute 20 percent or more of the
professional revenues received by the Director or member or 20 percent
or more of the gross revenues received by the Director's or member's
firm or partnership; or (vi) has a consulting or employment
relationship with or provides professional services to the Exchange or
any affiliate thereof or to FINRA (or any predecessor) or has had any
such relationship or provided any such services at any time within the
prior three years.
    The term ``Member Representative Director'' shall mean a Director
who has been elected or appointed after having been nominated by the
Member Nominating Committee or by a Member pursuant to these By-Laws. A
Member Representative Director may, but is not required to be, an
officer, director, employee, or agent of a Member. The term ``Non-
Industry Director'' shall mean a Director (excluding Staff Directors)
who is (i) a Public Director; (ii) an officer, director, or employee of
an issuer of securities listed on the national securities exchange
operated by the Exchange; or (iii) any other individual who would not
be an Industry Director. The term ``Public Director'' shall mean a
Director who has no material business relationship with a broker or
dealer, the Exchange or its affiliates, or FINRA. The term
``Stockholder Director'' shall mean a Director who is an officer,
director (or a person in a similar position in business entities that
are not corporations), designee or an employee of a holder of Common
Stock or any affiliate or subsidiary of such holder of Common Stock and
is duly elected to fill the one (1) vacancy on the Board of Directors
allocated to the Stockholder Director.
    The Exchange is proposing to replace the Independent Director with
a Public Director. The Exchange is proposing to replace the Designated
Industry Governor/Member Governor designation with a Member
Representative Director. The Exchange is proposing to replace the
Stockholder Governor with a Stockholder Director. The Exchange is also
proposing to add an Industry Director. The Exchange is retaining the
same 20 percent requirement with respect to Member representation. The
composition of this Board would be identical to that of the NASDAQ
Stock Market LLC.
    The Exchange is proposing to add a By-Law Section 3-3 titled
``Regulation.'' This By-Law Section mirrors that of the NASDAQ Stock
Market LLC.\44\ Currently, By-Law Section 4-24 concerns Interested
Transactions. This proposed new By-Law would replace current By-Law
Section 4-24. The Exchange is proposing to add a By-Law Section 3-5
titled ``Compensation of Board, Council, and Committee Members.'' This
By-Law would replace current By-Law Section 4-5, which concerns the
Compensation of

Governors. By-Law Section 3-5 mirrors that of NASDAQ Stock Market
LLC.\45\
---------------------------------------------------------------------------

    \44\ See NASDAQ Stock Market LLC By-Law Article III at Section
7.
    \45\ See NASDAQ Stock Market LLC By-Law Article III at Section
8.
---------------------------------------------------------------------------

    The amendments discussed herein to Article III and the proposed
Board structure and proposed By-Laws would replace By-Law Article IV.
Specifically, By-Law Section 4-1, titled Number and Composition, would
be deleted and replaced by newly proposed By-Law Section 3-2. By-Law
Section 4-2, which is reserved, would be deleted. By-Law Section 4-3,
titled Term, would be deleted and replaced by Section 8 of the LLC
Agreement and By-Law Section 2-1. Section 4-4, titled Duties and
Powers, would be deleted and replaced by the newly proposed By-Law
Sections in Article III.
    As mentioned above, By-Law Section 4-5 titled Compensation of
Governors would be deleted and replaced by new By-Law Section 3-5. By-
Law Section 4-6 titled Resignations would be deleted and replaced by
new By-Law Section 3-1. By-Law Section 4-7 titled Vacancies would be
deleted and replaced by new By-Law Section 3-1. By-Law Section 4-8
titled Disqualification of Governors would be deleted and replaced by
new By-Law Section 3-1. By-Law Section 4-9 titled Quorum and By-Law
Section 4-10 titled Place of Meeting are being deleted and replaced by
Section 8 of the LLC Agreement. The following By-Law Sections are also
being deleted and replaced by Section 8 of the LLC Agreement: By-Law
Section 4-11 titled Regular and Annual Meetings; By-Law Section 4-12
titled Action at Meetings; By-Law Section 4-13 titled Adjourned
Meetings; By-Law Section 4-14 titled Special Meetings; By-Law Section
4-15 titled Notices of Meetings of Board of Governors; By-Law Section
4-16 titled Informal Action by the Board of Governors; and By-Law
Section 4-17 titled Interpretation of By-Laws.
    The Exchange is simply renumbering By-Law Section 4-18 titled
Indemnification, to By-Law Section 3-6 and changing references from
Governor to Director and correcting By-Law references. By-Law Section
4-19 titled Term of Office would be deleted and replaced by Section 8
of the LLC Agreement.
    The Exchange is simply renumbering By-Law Section 4-20 titled
Exercise Rights with Respect to Stock Clearing Corporation Stock to By-
Law Section 3-7 and amending the reference from Governor to Director.
By-Law Section 4-21 titled Annual Financial Report would be deleted.
By-Law Section 4-22 titled Attendance of Meetings by Electronic Means
would be simply renumbered as By-Law Section 3-8 and references to
Governor are being changed to Director. By-Law Section 4-23 titled
Authority to Take Action Under Emergency or Extraordinary Market
Conditions would be simply renumbered as By-Law Section 7-5. By-Law
Section 4-24 titled Interested Transaction would be deleted and
replaced by proposed new By-Law Section 3-4.
    The Exchange is renaming Article IV, which is currently captioned
Chair and Officers of the Exchange to ``OFFICERS, AGENTS AND
EMPLOYEES.'' The NASDAQ Stock Market LLC has a similar caption in its
By-Laws.\46\ The Exchange is proposing to mirror the NASDAQ Stock
Market By-Laws Sections 1 though 11. The Exchange has adopted proposed
new By-Law Sections 4-1 titled ``Delegation of Duties of Officers'' and
By-Law Section 4-2 titled ``Resignation and Removal of Officers'' text
from the NASDAQ Stock Market LLC By-Laws and amended the remaining By-
Laws in proposed Article III to mirror those of NASDAQ Stock Market
LLC. The Exchange proposes to rename the remainder of Article IV as
follows: By-Law Sections 4-3 titled Chair of the Board of Directors;
By-Law Section 4-4 titled Chief Executive Officer; By-Law Section 4-5
titled President; By-Law Section 4-6 titled Vice President; By-Law
Section 4-7 titled Chief Regulatory Officer; By-Law Section 4-8 titled
Secretary; By-Law Section 4-9 titled Assistant Secretary; By-Law
Section 4-10 titled Treasurer; and By-Law Section 4-11 titled Assistant
Treasurer. These sections all mirror those of NASDAQ Stock Market
LLC.\47\
---------------------------------------------------------------------------

    \46\ See NASDAQ Stock Market LLC By-Laws Article IV.
    \47\ See NASDAQ Stock Market LLC By-Laws Article IV.
---------------------------------------------------------------------------

    The Remaining Sections of current Article V are being deleted.
Specifically, By-Law Section 5-1 titled Board's Appointive Power would
be replaced by proposed new By-Law Section 4-1. By-Law Section 5-3,
which is reserved, would be deleted. By-Law Section 5-7 titled Other
Officers would be replaced by proposed new By-Law Section 4-1. By-Law
Section 5-8 titled Powers and Duties of the Secretary would be replaced
by proposed new By-Law Section 4-8. By-Law Section 5-9 titled Powers
and Duties of the Treasurer would be replaced by proposed new By-Law
Section 4-10. By-Law Sections 5-10 titled Powers and Duties of Vice
Presidents and Assistant Officers, By-Law Section 5-11 titled
Delegation of Office and By-Law Section 5-12, titled Resignations, are
being deleted.
    The Exchange is deleting current By-Law Articles VI and VII, which
are reserved. By-Law Article VIII, currently captioned Presiding
Officials of the Exchange, will be renumbered as By-Law Article V and
will be captioned as ``STANDING COMMITTEES.'' The Exchange is proposing
to delete By-Law Section 8-1 titled Presiding Exchange Officials, and
relocate this By-Law into Rule 1000(e). This will be discussed in
further detail below. By-Law Article IX, which is currently reserved,
is proposed to be deleted.
    The Exchange is proposing to mirror the NASDAQ Stock Market LLC in
adopting By-Law Sections 5-1, 5-2 and 5-3.\48\ The Exchange is
proposing to adopt similar committees which exist today under the
NASDAQ Stock Market LLC By-Laws. Proposed new By-Law Section 5-1,
titled ``Committees,'' would require committee members, who are not
Directors, to provide the Secretary of the Exchange certain information
to classify a committee member. This Section will also govern the term
of office.
---------------------------------------------------------------------------

    \48\ See NASDAQ Stock Market LLC By-Law Article III, Sections 4-
6.
---------------------------------------------------------------------------

    Proposed new By-Law Section 5-2, would be titled ``Committees
Composed Solely of Directors.'' These committees would include an
Executive Committee, Finance Committee and a Regulatory Oversight
Committee. The Exchange currently has these committees.
    Proposed new By-Law Section 5-3 would be titled ``Committees Not
Composed Solely of Directors.'' The Nominating Committee and the Member
Nominating Committee would remain the same as currently exists today.
The Business Conduct Committee would also remain unchanged.
    The Exchange proposes to amend the composition of the Business
Conduct Committee. Currently, the Business Conduct Committee is
required to be comprised of not less than five (5) nor more than nine
(9) members, as established by the Board of Governors. The majority of
committee members are required to be Non-Industry members; and the
remaining committee members are Industry members. The Exchange proposes
to amend the composition as follows: The Business Conduct Committee
shall consist of not less than eight (8) nor more than twelve (12)
members, as established by the Board of Directors. The Business Conduct
Committee shall include a number of Member Representative members that
is equal to at least 20 percent of the total number of members of the
Business

Conduct Committee. The number of Non-Industry members, including at
least three Public members, shall equal or exceed the sum of the number
of Industry members and Member Representative members. This proposed
composition mirrors that of the NASDAQ Stock Market's NASDAQ Review
Council composition.\49\
---------------------------------------------------------------------------

    \49\ See NASDAQ Stock Market LLC By-Law Article VI, Section 2.
---------------------------------------------------------------------------

    The Quality of Markets Committee would continue to exist with
different functions. Similar to the NASDAQ Stock Market LLC By-Laws,
the Exchange proposes that the Quality of Markets Committee would have
the following functions: (A) To provide advice and guidance to the
Board on issues relating to the fairness, integrity, efficiency, and
competitiveness of the information, order handling, and execution
mechanisms of the national securities exchange operated by the Exchange
from the perspective of investors, both individual and institutional,
retail firms, market making firms, Nasdaq-listed companies, and other
market participants; and (B) to advise the Board with respect to
national market system plans and linkages between the facilities of the
Exchange and other markets. The Quality of Markets Committee would
include broad representation of participants in the national securities
exchange operated by the Exchange, including investors, market makers,
integrated retail firms, and order entry firms. The Quality of Markets
Committee would be comprised of a number of Member Representative
members that is equal to at least 20 percent of the total number of
members of the Quality of Markets Committee. The number of Non-Industry
members of the Quality of Markets Committee would equal or exceed the
sum of the number of Industry members and Member Representative
members.
    Finally, the Exchange proposes to rename its Options Trade Review
Committee as the Market Operations Review Committee. The functions of
this committee are specified in Rules 124, 1092, 3312 and Option Floor
Procedure Advice F-27. The Market Operation Review Committee shall
include a number of Member Representative members that is equal to at
least 20 percent of the total number of members of the Market
Operations Review Committee. No more than 50 percent of the members of
the Market Operations Review Committee would be engaged in market
making activity or employed by a Member firm whose revenues from market
making activity exceed 10 percent of its total revenues.
    The Exchange is replacing current By-Law Sections 10-1 titled
Standing Committees, By-Law Section 10-2 titled General Duties and
Powers of Committees, By-Law Section 10-3 titled Proceedings of Special
and Standing Committees, By-Law Section 10-4 titled Vacancies in
Standing Committees--Ad Interim Appointments, By-Law Section 10-5
titled Continuation of Committees, By-Law Section 10-9 titled
Regulatory Oversight Committee, By-Law Section 10-10 titled Options
Trade Review Committee, By-Law Section 10-11 titled Business Conduct
Committee, By-Law Section 10-14 titled Executive Committee, By-Law
Section 10-15 titled Finance Committee, By-Law Section 10-19 titled
Nominating Committees and By-Law Section 10-21 titled Quality of
Markets Committee with these proposed new By-Law Sections: By-Law
Section 5-1 titled Committees, By-Law Section 5-2 titled Committees
Composed Solely of Directors and By-Law Section 5-3 titled Committees
Not Composed Solely of Directors. The following By-Law Sections, which
are currently reserved, are being deleted: By-Law Sections 10-6, 10-7,
10-8, 10-12, 10-13, 10-16, 10-17, 10-18 and 10-20.
    The Exchange is proposing to delete the title of By-Law Article XI
concerning Appeals. The Exchange is also deleting By-Law Sections 11-1
titled When Allowed, 11-2 titled Advisory Committees on Appeals and 11-
3 Appeal from Decisions of Hearing Panel or Business Conduct Committee.
Exchange Rules 124, 507 \50\, 511\51\, 900.2 \52\, 960.9 \53\, 1092 and
3312 currently contain review procedures where applicable. Additional
language was added to Rules 511, 900.2 and 960.9 concerning review
procedures.
---------------------------------------------------------------------------

    \50\ Additional language was added to Rule 507 which is proposed
to be deleted from By-Law Article XI, Section 11-1.
    \51\ Additional language was added to Rule 511 which is proposed
to be deleted from By-Law Article XI, Section 11-1.
    \52\ Additional language was added to Rule 900.2 which is
proposed to be deleted from By-Law Article XI, Section 11-1.
    \53\ Additional language was added to Rule 960.9 which is
proposed to be deleted from By-Law Article XI, Section 11-2.
---------------------------------------------------------------------------

    The Exchange is proposing to delete the title of By-Law Section XII
captioned ``Permits-Eligibility-Election-Initiation Fee.'' By-Law
Section 12-1 titled Rights to Issue Permits and Non-Transferability
would be deleted and renumbered new By-Law Section 7-4. By-Law Section
12-2 titled Eligibility and By-Law Section 12-3 titled Number Held is
deleted and proposed to be moved into Rule 908. By-Law Section 12-4
titled Admission of Corporation would be deleted, renumbered and
proposed as new Rule 798. By-Law Section 12-5, which is reserved, would
be deleted. By Law Section 12-6 titled Rights and Privileges would be
deleted and renumbered as proposed new By-Law Section 6-1. By-Law
Section 12-7 titled Rights and Privileges of Corporate Member would be
and renumbered as part of proposed new By-Law Section 6-1(c). By-Law
Section 12-8 titled Maintenance of Qualifying Permit Holder and Member
Organization Representative would be deleted and added to Rule 921. By-
Law Section 12-9 titled Acceptance of LLC Agreement, By-Laws and Rules,
would be deleted and renumbered as proposed new By-Law Section 6-2. By-
Law Section 12-10 titled Inactive Nominees would be deleted, renumbered
and proposed as new Rule 925. By-Law Section 12-11 titled Use of
Facilities of Exchange, would be deleted and renumbered as new By-Law
Section 6-3. By-Law Section 12-12 titled, Certain Transitional Rules
would be deleted and renumbered as new By-Law Section 6-4.
    The title to By-Law Article XIII captioned Member Organizations--
Trading-Specialist and Floor Brokerage Operations would be deleted. By-
Law Section 13-1, titled Qualification would be deleted and renumbered
as proposed new Rule 910 along with the following By-Law Sections: 13-2
titled Qualifications, 13-3 titled Exclusion of Banks and Investment
Trusts, 13-6 titled Conditions to Member Organization Status, 13-7
titled Violation of Terms of Registration, 13-8 titled Termination of
Registration; and 13-9 titled Absence or Disability of an Officer,
Member of the Exchange. By-Law Section 13-4 titled Provisions of By-
Laws and Rules Applicable to Member and Participant Organizations was
renumbered as proposed new By-Law Section 6-5 and retitled as
Provisions of By-Laws and Rules Applicable to Member Organizations. By-
Law Section 13-5 titled Liability of Officers, Directors and
Substantial Stockholders \54\ was renumbered as proposed new By-Law
Section 6-6. By-Law Section 13-10 titled Application to Member
Organizations would be renumbered as proposed new By-Law Section 6-7.
In relocating these Rules, all references to foreign currency options
participants or participations

were removed from the text of new rules.
---------------------------------------------------------------------------

    \54\ For purposes of By-Law Section 6-6, a substantial
stockholder is a stockholder with a controlling interest in the
entity.
---------------------------------------------------------------------------

    The title to By-Law Article XIV captioned Dues, Fines, Net
Commissions and Other Charges-- Penalties for Non-Payment would be
deleted. By-Law Section 14-1 titled Fees, Dues and Other Charges would
be deleted. This By-Law Section language is currently contained in Rule
55. By-Law Article 14-5 titled Penalty for Non-Payment is being deleted
and renumbered as Rule 55. By-Law Article 14-2, which is reserved,
would be deleted. By-Law Section 14-3 titled Corporate Member Exempt
would be deleted and renumbered as Rule 798. By-Law Section 14-4 titled
May Be Waived for Members in Military Service would be deleted and
renumbered as proposed new Rule 53 along with By-Law Section 14-6
titled Liability for Dues Until Transfer. By-Law Section 14-7 titled
Dues on Transfer of Participation is being deleted and renumbered as
proposed new Rule 53. By-Law Sections 14-8 and 14-9, which are
reserved, would be deleted. By-Law Section 14-10 titled Service Fee
would be deleted and renumbered as proposed new Rule 54. By-Law Section
14-11 titled Claims by Former or Deceased Members would be deleted and
renumbered as proposed new Rule 55. By-Law Section 14-12 titled Effect
of Suspension or Termination on Payment of Fees would be deleted and
renumbered as proposed new Rule 56. In relocating these Rules, all
references to foreign currency options participants or participations
were removed from the text of new rules.
    The title to By-Law Article XV captioned Transfer of Foreign
Currency Options Participations would be deleted along with Sections
15-1 through 15-11 because the Exchange is proposing to eliminate
foreign currency option participations.
    The title of By-Law Article XVI captioned Members' Contracts and
Exchange Contracts would be deleted. By-Law Section 16-1 titled
Members' Contracts would be deleted and renumbered as proposed new Rule
57. By-Law Article 16-2 titled Exchange Contracts would be deleted and
renumbered proposed new Rule 58. By-Law Article 16-3 titled By-Laws and
Rules Incorporated into Exchange Contracts would be renumbered as
proposed new By-Law Section 6-8. By-Law Section 16-4 titled Deliveries
through Registered Clearing Agencies would be deleted and renumbered as
proposed new Rule 59.
    The title to By-Law Article XVII captioned Insolvency--Suspension--
Reinstatement would be deleted. By-Law Section 17-1 titled Suspension
for Insolvency on Declaration would be deleted and renumbered as
proposed new Rule 70. By-Law Section 17-2 titled Suspension for
Insolvency on Advice to Committee on Business Conduct would be deleted
and renumbered as proposed new Rule 71. By-Law Section 17-3 titled
Investigation of Insolvency would be deleted and renumbered as proposed
new Rule 72. By-Law Article 17-4 titled Time for Settlement of
Insolvent Member or Participant would be deleted and renumbered as
proposed new Rule 73. By-Law Section 17-5 titled Reinstatement of
Insolvent Member or Participant would be deleted and renumbered as
proposed new Rule 74. By-Law Section 17-6 titled Disciplinary Measures
During Suspension for Insolvency would be deleted and renumbered as
proposed new Rule 75. By-Law Section 17-7 titled Rights of Member
Suspended for Insolvency would be deleted and renumbered as proposed
new Rule 76. In relocating these Rules, all references to foreign
currency options participants or participations were removed from the
text of new rules.
    The title to Article XVIII captioned Offenses, Discipline,
Penalties and Business Connections would be deleted. The language in
By-Law Section 18-1 titled Offenses, Discipline, Penalties is being
deleted as the language is currently contained in Rule 960.1. By-Law
Section 18-2 titled Announcement of Penalties is being deleted and the
text is being relocated into current Rule 960.8. By-Law Section 18-3
titled Responsibility of Member or Participant for Acts of His
Organization would be deleted and relocated as proposed new Rule 910.
By-Law Section 18-4 titled Disapproval of Business is being deleted and
relocated as proposed new Rule 63. By-Law Section 18-5 titled Effect of
Suspension or Termination would be deleted and renumbered as proposed
new Rule 63. In relocating these Rules, all references to foreign
currency options participants or participations were removed from the
text of new rules.
    The title to By-Law Article XIX, which is reserved, would be
deleted. The title to By-Law Article XX captioned Vacancies Created By
Expulsion, Suspension, or Termination would be deleted. By-Law Section
20-1 titled Office Vacated by Suspension or Termination would be
deleted and renumbered as proposed new Rule 64. By-Law Sections 20-2,
which is reserved, and By-Law Section 20-3 titled Change in Status of
Partner of Officer, would be deleted as they are being replaced by
proposed new Board definitions as discussed herein.
    The title to By-Law Article XXI, which is reserved, would be
deleted. The title to By-Law Article XXII captioned Amending the By-
Laws, would be deleted. By-Law Section 22-1 titled Amendments to By-
Laws would be renumbered as By-Law Section 6-9. The title to By-Law
Article XXIII, which is reserved, would be deleted. The title to By-Law
Article XXIV captioned Seal of the Exchange would be deleted. By-Law
Section 24-1 titled Seal would be renumbered as By-Law Section 6-10.
    The title to By-Law Article XXV captioned Fiscal Year of the
Exchange would be deleted. By-Law Section 25-1 titled Fiscal Year would
be renumbered as By-Law Section 6-11. The title to By-Law Article XXVI
captioned Exchange Options Trading would be deleted. By-Law Sections
26-1 and 26-2, which are reserved, are being deleted. By-Law Section
26-3 titled Dealings would be renumbered as By-Law Section 6-12.
    The title to By-Law Article XXVII captioned Foreign Currency
Options Trading would be deleted. By-Law Sections 27-1 through 27-4
would be deleted as well because the Exchange is eliminating foreign
currency option participations.
    The title to By-Law Article XXVIII captioned Stockholder
Nominations--Stockholder Annual Elections--Stockholder Meetings would
be deleted. By-Law Sections 28-1 through 28-12 are being deleted
because they are superseded by the proposed amendments to the LLC
Agreement and By-Law Article II. By-Law Article 28-13 titled Action
Without Meeting would be renumbered as proposed new By-Law Section 6-
13.
    The title to By-Law Article XXIX captioned Shares would be deleted.
By-Law Sections 29-1 titled Certificates, 29-2 titled Signatures, 29-3
titled Share Ledger, 29-4 titled Transfers of Shares, 29-5 titled
Cancellation, 29-6 titled Lost, Stolen, Destroyed and Mutilated
Certificates are superseded by amendments to the LLC Agreement and
therefore deleted. By-Law Section 29-7 titled Fixing of Record Date
would be renumbered as proposed new By-Law 6-14. By-Law Section 29-8
titled Distributions would be renumbered as proposed new By-Law Section
6-15. Proposed new By-Law Section 6-16 titled ``Waiver of Notice'' and
By-Law Section 6-17 titled ``Execution of Instruments Contracts, etc.''
are being added and mirror language contained in

the NASDAQ Stock Market LLC By-Laws.\55\
---------------------------------------------------------------------------

    \55\ See NASDAQ Stock Market LLC By-Laws at Article VII,
Sections 1 and 2.
---------------------------------------------------------------------------

    The title to proposed new By-Law Article VII captioned ``Exchange
Authorities'' would be added. Proposed new By-Law Section 7-1 titled
``Rules'', By-Law Section 7-2 titled ``Disciplinary Proceedings'', By-
Law Section 7-3 titled ``Membership Qualifications'', By-Law Section 7-
4 titled ``Fees, Dues, Assessments, and Other Charges'', and By-Law
Section 7-5 titled ``Authority to Take Action Under Emergency or
Extraordinary Market Conditions'' are being added and substantially
mirror language in the NASDAQ Stock Market By-Laws.\56\ By-Law
Section12-1 titled Right to Issue Permits and Non-Transferability was
deleted and renumbered and is currently Section 7-6.
---------------------------------------------------------------------------

    \56\ See NASDAQ Stock Market LLC By-Laws at Article IX, Sections
1 through 5.
---------------------------------------------------------------------------

Rules
    The Exchange is proposing to delete definitions from Rule 1. The
Exchange is proposing to delete definitions that relate to foreign
currency options participations because the Exchange is proposing to
eliminate such participations. The following definitions are related to
foreign currency option participations and are proposed for deletion:
``Foreign Currency Options Participant or Participant'', ``Foreign
Currency Option Participant Organization'', ``Approved Lessor'',
``Lessee and Lessor''.
    The Exchange is also proposing to delete definitions that related
to the former XLE trading system. The following definitions relate to
XLE and are obsolete and proposed for deletion: ``Approved Dealer'',
``Market Maker'', ``Market Maker Authorized Trader'', ``Participant
Authorized User or PAU'', ``Routing Agreement'', ``XLE'', ``XLE
Participant'', ``Quote Management Instruction or QMI'', ``Public Agency
Order'', ``Professional Order'', ``Proprietary Order'', ``Mixed Lot'',
``Round Lot'' and ``Odd Lot''. The term ``Member Organization
Representative'' is also being deleted and replaced by the proposed
term ``Executive Representative''.
    The Exchange is also proposing to add several clarifying
definitions such as ``Act, Exchange Act or Securities Exchange Act'',
``Associated Person or Person Associated with a Member Organization'',
``Board or Board of Directors'', ``By-Laws'', ``Commission'',
``Director'', ``FINRA'', ``Investment Banking or Securities Business'',
``SEC'', ``Representative'' and ``Securities Act''. The Exchange
believes these definitions, which are located throughout the Rules,
will clarify the meaning of each of these terms. The Exchange also
proposed to alphabetize the definitions.
    The Exchange is proposing several universal amendments to both the
By-Laws and Rules of the Exchange. The Exchange is proposing to change
references from ``Board of Governors'' to ``Board of Directors''. The
Exchange is proposing to change references to ``National Association of
Securities Dealers'' or ``NASD'' to ``Financial Industry Regulatory
Authority, Inc.'' or ``FINRA''. The Exchange is proposing to replace
certain references to ``XLE'' with ``PSX'', where applicable and delete
all obsolete references. The Exchange is proposing to replace ``Member
Organization Representative'' with ``Executive Representative''. The
Exchange is proposing to delete all references to Foreign Currency
Options Participation, Participation, Lessor and Lessee. The Exchange
is proposing to replace certain usages of ``Phlx'' with ``Exchange''.
The Exchange proposes to remove certain references to AUTOM and AUTO-X,
which terms were replaced by Phlx XL.\57\
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    \57\ See Exchange Rule 1080(a).
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    The Exchange is proposing to replace ``NASDAQ OMX PHLX, Inc.'' with
``NASDAQ OMX PHLX LLC''.\58\ References to the ``Certificate of
Incorporation'' are proposed to be replaced with ``Limited Liability
Company Agreement'' and/or ``Certificate of Formation'' where
appropriate.\59\
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    \58\ See Securities Exchange Act Release No. 62783 (August 27,
2010), 75 FR 54204 (September 3, 2010) (SR-Phlx-2010-104).
    \59\ See Securities Exchange Act Release No. 62783 (August 27,
2010), 75 FR 54204 (September 3, 2010) (SR-Phlx-2010-104).
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    The Exchange is proposing to add Rules as indicated above that were
originally contained in the By-Laws. The Exchange is proposing to make
capitalizations of certain terms consistent such as the words ``Rules''
and ``By-Laws''. Also, the Exchange proposes to reference Member and
Member Organization with capitalizations in the By-Laws and lower case
letters in the Rules. The Exchange proposes to delete certain Equity
Floor Procedure Advices which are no longer relevant because the
Exchange does not have an equity trading floor or because XLE is no
longer utilized.
    The Exchange proposes to update names of certain self-regulatory
organizations to reflect corporate actions. The Exchange proposes to
change references to the Examinations Department to reflect the
Exchange or the Membership Department as applicable. The Exchange has
restructured certain departments and would like to clarify which
departments should receive such information and in some cases reflect
the Exchange instead of a specific department because the Exchange
otherwise uses forms or indicates via its Web site which specific
person should receive certain information. The Exchange also proposes
to change references from ``Market Surveillance'' to ``Regulatory
staff.'' This change also reflects the restructuring of certain
departments.
    The Exchange is proposing to clarify certain Standing Committee
references. References to the ``Options Trade Review Committee'' are
proposed to be changed to ``Market Oversight Review Committee''. This
Market Oversight Review Committee would be utilized for both equity and
options matters.\60\ The Exchange is proposing to delete Rules 930-949
which concern Foreign Currency Option Participations, which the
Exchange is proposing to delete.
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    \60\ See Exchange Rule 1092 (Obvious Errors and Catastrophic
Errors) and 3312 (Clearly Erroneous Transactions).
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    The Exchange is reserving the following rules which related to XLE
and are no longer necessary as they do not relate to PSX: Rule 111,
Bids and Offers Binding, Rule 125, Order Entry and Execution
Increments, Rule 161, Transmission of Bids or Offers, Rule 162, Orders
Deemed Regular Way, Rule 163, Clearly Erroneous Executions, Rule 164,
Trading Halts, Rule 165, Clearance and Settlement, Rule 170,
Registration of Market Makers, Rule 171, Obligations of Market Maker
Authorized Traders, Rule 172, Registration of Market Makers in a
Security, Rule 173, Obligations of Market Makers, Rule 174, Hearing and
Review of Decisions by the Exchange Staff, Rule 180, Access, Rule 181,
Order Entry, Rule 182, Order Marking, Rule 183, Trading Sessions
Customer Disclosure, Rule 184, Order Ranking and Display, Rule 185,
Orders and Order Execution, Rule 186, Locking or Crossing Quotations in
NMS Stocks, Rule 187, Odd and Mixed Lots and Rule 189, Clearance and
Settlement and Anonymity.
    These Rules are related to XLE, the Exchange's former equity
trading system, which ceased operations in October 2008.\61\ The
Exchange recently launched a new cash equities trading

platform.\62\ The Exchange filed to establish rules relating to PSX.
Specifically, Rule 3202 notes existing rules which are applicable to
PSX. The aforementioned rules are not related to PSX or the Exchange's
options business and are therefore obsolete.
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    \61\ See Securities Exchange Act Release No. 58613 (September
22, 2008), 73 FR 57181 (October 1, 2008) (SR-Phlx-2008-65).
    \62\ See Securities Exchange Act Release No. 62877 (September 9,
2010), 75 FR 56633 (September 16, 2010) (SR-Phlx-2010-79).
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    With respect to Exchange Rule 3202, the Exchange relocated several
By-Laws, which are applicable to PSX Participants to sections of the
Rules. The Exchange is amending Rule 3202 to specifically enumerate
those former by-laws as proposed rules applicable to PSX Participants.
The new Rules, which were previously By-Laws, include Rules 52, 53, 54,
55, 56, 57, 58, 59, 62, 63, 64, 70, 71, 72, 73, 74, 75, 76, 798, 910
and 925. Additionally, the Exchange is proposing to add Rule 803,
Criteria for Listing-Tier 1, to Rule 3202. The Exchange previously
filed a rule change which discussed the applicability of Rule 803 to
PSX Participants.\63\ The Exchange proposes to note that rule is
applicable to PSX Participants by adding Rule 803 to the list of Rules
notes in 3202.
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    \63\ See Securities Exchange Act Release Nos. 62877 (September
9, 2010), 75 FR 56633 (September 16, 2010) (SR-Phlx-2010-79).
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    The Exchange is removing references to XLE in Rule 110, Bids and
Offers--Precedence, Rule 120, Precedence of Offers at Same Price, and
Rule 136 Trading Halts in Certain Exchange Traded Funds, because those
references are no longer relevant. The Exchange is amending the title
of Rule 124, ``Disputes--Options'' to indicate that Rule applies to
options and not equities.
    The Exchange is also amending other references in the Rule text to
correct cross-references to sections that were impacted by previous
rule changes.\64\ The Exchange has amended certain cross-references for
technical accuracy. The Exchange has made technical amendments to
certain rules which are reserved or require a heading for ease of
reference. The Exchange added various additional clarifying text
throughout to make the Rules more clear and provide additional
references where necessary. These technical amendments were not
substantive.
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    \64\ See Securities Exchange Act Release Nos. 42889 (June 2,
2000), 65 FR 36878 (June 12, 2000) (SR-Phlx-00-12) (a proposal to
rescind Rule 132); 60169 (June 24, 2009), 74 FR 31782 (July 2, 2009)
(SR-Phlx-2009-40) (a proposal to amend text in Rule 1043); and 63036
(October 4, 2010), 75 FR 62621 (October 12, 2010) (SR-Phlx-2010-131)
(a proposal to revise Rule 1014).
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act \65\ in general, and furthers the objectives of Section
6(b)(5) of the Act \66\ 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, by streamlining subsidiary self-regulatory organizations of
NASDAQ OMX Group to conform the corporate documents and provide clarity
to its members. The Exchange believes that amending the Limited
Liability Company Agreement and the By-Laws to amend the board
structure and committees and eliminate the Series A Preferred
Shareholder continues to provide for the fair representation for its
members.
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    \65\ 15 U.S.C. 78f(b).
    \66\ 15 U.S.C. 78f(b)(5).
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    The Exchange is proposing to populate the board with public and
non-industry Directors and Member Representative Directors, which would
continue to comprise twenty percent of Directors. The Exchange is not
amending its current structure which allows for the nomination of
Directors by the membership. The Exchange believes that the current
board structure and election process provide for the fair
representation of members in the selection of directors and the
administration of the Exchange consistent with the requirements of
Section 6(b)(3) of the Exchange Act. This proposal will allow members
to have a voice in the use of the Exchange and ensure that the Exchange
is administered in a way that is equitable to all those who trade on
its market or through its facilities. Additionally, the Exchange
believes that the composition of the Board satisfies the requirements
of Section 6(b)(3) of the Exchange Act, which requires that one or more
directors be representative of issuers and investors and not be
associated with a member of the Exchange, or a broker dealer.
    The Regulatory Oversight Committee will continue to be comprised of
Public Directors and ensure the Exchange's ability to protect the
public interest and foster the integrity of the Exchange by bringing a
unique, unbiased prospective to the process. The Exchange is not
amending the composition of its Executive, Finance, Nominating or
Member Nominating Committees. The Exchange is amending the composition
of its Business Conduct Committee so that the majority of its committee
members shall be Non-Industry members and the remaining committee
members shall be Industry members. The Exchange is also amending the
Quality of Markets Committee and the Market Operations Review Committee
(currently named Options Trade Review Committee) composition so that
those committees are comprised of a number of Member Representative
members that equal to at least twenty percent of the total number of
members of the Quality of Markets Committee. These Committees continue
to allow for fair representation of members.
    The remaining conforming amendments to the Limited Liability
Company Agreement and By-Laws to the NASDAQ Stock Market LLC model
would streamline the NASDAQ's governance process and create equivalent
governing standards among the NASDAQ self-regulatory organizations. The
Exchange also renumbered various By-Law provisions into the Exchange
By-Laws without substantive change.
    The Exchange is also proposing certain amendments to eliminate the
foreign currency option participations, delete obsolete terms, amend
cross references, update terminology and conform the Rules to the
proposes amendments to the Limited Liability Company Agreement and By-
Laws. The Exchange believes that these amendments will provide more
clarity and simplicity to the Exchange's Rules, Advices \67\ and
Regulations.
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    \67\ The Exchange's minor rule plan consists of options floor
procedure advices (``OFPAs'') And [sic] equity floor procedure
advices (``EFPAs'') (collectively ``Advices'') with preset fines,
pursuant to Rule 19d-1(c) under the Act. See 17 CFR240.19d-1(c)
[sic]. Most Advices have corresponding options rules.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period (i)

as the Commission may designate up to 90 days of such date if it finds
such longer period to be appropriate and publishes its reasons for so
finding or (ii) as to which the Exchange consents, the Commission
shall: (a) By order approve or disapprove such proposed rule change, or
(b) institute proceedings to determine whether the proposed rule change
should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-Phlx-2011-13 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-Phlx-2011-13. 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 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 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-Phlx-2011-13 and
should be submitted on or before March 25, 2011.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\68\
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    \68\ 17 CFR 200.30-3(a)(12).
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Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-4898 Filed 3-3-11; 8:45 am]
BILLING CODE 8011-01-P