Notice2025-23668
Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Nasdaq BX, Inc.; Nasdaq GEMX, LLC; Nasdaq MRX, LLC; Nasdaq PHLX LLC; Nasdaq ISE, LLC; Order Approving Proposed Rule Change To Amend the Amended and Restated Certificate of Incorporation and By-Laws of Parent Corporation, Nasdaq, Inc.
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 23, 2025
Issuing agencies
Securities and Exchange Commission
Full Text
<html>
<head>
<title>Federal Register, Volume 90 Issue 244 (Tuesday, December 23, 2025)</title>
</head>
<body><pre>
[Federal Register Volume 90, Number 244 (Tuesday, December 23, 2025)]
[Notices]
[Pages 60177-60180]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-23668]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-104443; File Nos. SR-NASDAQ-2025-080; SR-BX-2025-024;
SR-GEMX-2025-27; SR-MRX-2025-23; SR-Phlx-2025-56; SR-ISE-2025-31]
Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Nasdaq BX, Inc.; Nasdaq GEMX, LLC; Nasdaq MRX, LLC; Nasdaq PHLX LLC;
Nasdaq ISE, LLC; Order Approving Proposed Rule Change To Amend the
Amended and Restated Certificate of Incorporation and By-Laws of Parent
Corporation, Nasdaq, Inc.
December 18, 2025.
I. Introduction
On September 26, 2025, each of The Nasdaq Stock Market LLC
(``NASDAQ Exchange''); Nasdaq BX, Inc. (``BX''); Nasdaq GEMX, LLC
(``GEMX''); Nasdaq MRX, LLC (``MRX''); Nasdaq PHLX LLC (``PHLX''); and
Nasdaq ISE, LLC (``ISE'' and, collectively, the ``Exchanges''), filed
with the Securities and Exchange Commission (``Commission''), pursuant
to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'')
\1\ and Rule 19b-4 thereunder,\2\ proposed rule changes (the
``Proposals'') with respect to the Amended and restated Certificate of
Incorporation (``Certificate'') and By-Laws (``By-Laws'') of their
parent corporation, Nasdaq, Inc. (``Nasdaq''). The Proposals amend the
Certificate to align with certain amendments to the Delaware General
Corporation Law
[[Page 60178]]
(``DGCL'') passed in 2022 and update the By-Laws to reflect recent
changes in law and best practices. The Proposals were published for
comment in the Federal Register on October 1, 2025.\3\ On November 3,
2025, pursuant to Section 19(b)(2) of the Act,\4\ the Commission
designated a longer period within which to approve the proposed rule
changes, disapprove the proposed rule changes, or institute proceedings
to determine whether to disapprove the proposed rule changes.\5\ The
Commission did not receive any comment letters on the Proposals. This
order approves the Proposals.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ Securities Exchange Act Release Nos. 104108 (September 26,
2025), 90 FR 47418 (SR-NASDAQ-2025-080) (``NASDAQ Exchange
Notice''), 104110 (September 26, 2025), 90 FR 47428 (SR-BX-2025-
024), 104118 (September 29, 2025), 90 FR 47444 (SR-GEMX-2025-27),
104120 (September 29, 2025), 90 FR 47373 (SR-MRX-2025-23), 104109
(September 26, 2025), 90 FR 47401 (SR-Phlx-2025-56); 104115
(September 29, 2025), 90 FR 47461 (SR-ISE-2025-31) (collectively,
``Notices'').
\4\ 15 U.S.C. 78s(b)(2).
\5\ See Securities Exchange Act Release No. 104173, 90 FR 51424
(designating December 30, 2025, as the date by which the Commission
shall either approve, disapprove, or institute proceedings to
determine whether to disapprove the proposed rule changes).
---------------------------------------------------------------------------
II. Description of the Proposals
The Exchanges propose amendments to the Certificate to exculpate
covered officers from monetary liability for breach of fiduciary duty,
similar to the existing treatment of directors.\6\ As discussed more
fully in the Notices, the Exchanges state that the proposed amendments
would update the Certificate to reflect amendments to the DGCL that
enable companies to limit the liability of certain officers in narrow
circumstances.\7\
---------------------------------------------------------------------------
\6\ See, e.g., NASDAQ Exchange Notice, supra note 3, at 47419.
\7\ See, e.g., id. (discussing related corporate governance
trends under Delaware law and the potential consequences to Nasdaq
from failing to adopt the proposed changes). See also infra notes 38
and 39 and accompanying text.
---------------------------------------------------------------------------
The Exchanges also propose amendments to the following provisions
of the By-Laws: Articles III (Meetings of Stockholders); \8\ IV (Board
of Directors); \9\ VII (Officers, Agents, and Employees); \10\ VIII
(Indemnification); \11\ IX (Capital Stock); \12\ X (Miscellaneous
Provisions); \13\ XI (Amendments and Emergency By-Laws); \14\ and XIII
(Forum Selection); \15\ as well as other non-substantive changes.\16\
These amendments are summarized below and discussed more fully in the
Notices.
---------------------------------------------------------------------------
\8\ See NASDAQ Exchange Notice, supra note 3, at 47419-22.
\9\ See id. at 47422-24.
\10\ See id. at 47424-25.
\11\ See id. at 47425.
\12\ See id. at 47425-26.
\13\ See id. at 47426.
\14\ See id.
\15\ See id.
\16\ See id. at 47426-27. These changes are either typographical
corrections or otherwise administrative or clarifying changes (such
as changing a reference to ``shareholder'' to ``stockholder'' to
more closely reflect terminology of the By-Laws).
---------------------------------------------------------------------------
Proposed Amendments to Article III
<bullet> Specify the scope of information that may be requested in
connection with a stockholder nominee for director to provide that
Nasdaq may require any other information to determine whether the
proposed nominee is qualified under the Certificate, the By-Laws, and
other applicable rules, laws, and regulations.
<bullet> Amend the information requirements for notices to Nasdaq
from a Proposing Person \17\ regarding nominations or other business to
be considered at an annual meeting of stockholders. Such notices
require ``a description of any agreement, arrangement or understanding
with respect to the nomination or proposal between and among such
stockholder and/or such beneficial owners, any of their respective
affiliates or associates, and any others acting in concert with any of
the foregoing'' (emphasis added).\18\ The amendments remove the
references to others ``acting in concert.'' \19\
---------------------------------------------------------------------------
\17\ Section 3.1(c) of the By-Laws defines ``Proposing Person''
as (i) the stockholder providing the notice of business or the
notice of the nomination, as applicable, proposed to be brought
before an annual meeting, (ii) any beneficial owner or beneficial
owners, if different, on whose behalf such business is proposed to
be brought before the meeting or the notice of the nomination
proposed to be made at the meeting is made, as applicable, and (iii)
any affiliate or associate (each within the meaning of Rule 12b-2
under the Act for purposes of these By-Laws) of such stockholder or
beneficial owner.
\18\ See NASDAQ Exchange Notice, supra note 3, at 47420;
proposed By-Laws Section 3.1(b)(iii)(C).
\19\ The Exchanges propose a similar amendment to By-Law Section
3.2(a), which addresses requirements for requesting a special
meeting of the stockholders, including procedures for determining
the requisite percentage of stockholders necessary to support a
special meeting request. See NASDAQ Exchange Notice, supra note 3,
at 47421.
---------------------------------------------------------------------------
<bullet> Add a requirement that a Proposing Person's notice must
include a representation as to whether the Proposing Person intends, or
is part of a group which intends, ``to solicit proxies or votes in
support of any proposed nominee in accordance with Rule 14a-19 \20\
promulgated under the Act.'' \21\
---------------------------------------------------------------------------
\20\ 17 CFR 240.14a-9 (referred to as the ``universal proxy
rule'').
\21\ See, e.g., NASDAQ Exchange Notice, supra note 3, at 47421;
proposed By-Laws Section 3.1(b)(iii)(O)(3). Other amendments to the
By-Laws under the Proposals also clarify when the universal proxy
rule would apply. See, e.g., NASDAQ Exchange Notice, supra note 3,
at 47421; proposed By-Laws Section 3.3(a) (relating to when Nasdaq
would disregard nominees proposed by a stockholder under the
universal proxy rule, if the stockholder has failed to comply has
failed to comply with the rule).
---------------------------------------------------------------------------
<bullet> Limit the number of nominees that a Proposing Person may
nominate for election at the annual meeting in certain instances to the
number of directors to be elected at such annual meeting.
<bullet> Remove a reference to the binding nature of the Board's
\22\ determination with respect to whether a special meeting request is
in proper form, which aligns the By-Laws with current Delaware
corporate practices.\23\
---------------------------------------------------------------------------
\22\ ``Board'' is defined in Article I(c) of the By-Laws as the
Board of Directors of Nasdaq.
\23\ The Exchanges propose similar deletions of references to
the decisions made in the ``sole discretion'' of the Board or to the
finality or ``binding'' nature of decisions by the Board (or persons
authorized by the Board), any committees thereof, or the chairman of
a meeting thereof throughout the proposed amendments.
---------------------------------------------------------------------------
<bullet> Require that the chairman who presides over stockholder
meetings shall be an officer or director of Nasdaq.
Proposed Amendments to Article IV
<bullet> Provide Nasdaq with greater flexibility to include
``Issuer Directors'' on the Board by removing the current restriction
that the Board may not include more than two such directors.\24\
---------------------------------------------------------------------------
\24\ ``Issuer Director'' is defined in Article I(o) of the By-
Laws.
---------------------------------------------------------------------------
<bullet> Amend the Board quorum and voting provisions to clarify
how a quorum is calculated and the process for the adjournment of
meetings.
<bullet> Amend how notice of meetings may be given to, or waived
by, directors (e.g., eliminate outdated forms of communication, such as
telegram, telefax, cable, and radio).
<bullet> Specify that Nasdaq is opting into Section 141(c)(2) of
the DGCL, which provides Nasdaq greater flexibility with respect to the
formation and powers of Board committees, including, for example,
allowing greater delegations of authority.\25\
---------------------------------------------------------------------------
\25\ See, e.g., NASDAQ Exchange Notice, supra note 3, at 47421-
23.
---------------------------------------------------------------------------
<bullet> Remove limitations on the ability of Board committees to
take certain actions, such as the authorization of preferred stock
designations.
<bullet> Remove the one-year limitation on the terms of committee
members.\26\
---------------------------------------------------------------------------
\26\ See, e.g., NASDAQ Exchange Notice, supra note 3, at 47423.
The Proposals also remove the requirement that the chair of Nasdaq's
Audit Committee must be a Public Director (as defined in Article I
of the By-Laws). See id. The Exchanges state that the chair of the
Audit Committee must still satisfy prescribed independence
standards. See id. With respect to the Audit Committee, the
Proposals would amend the By-Laws to provide flexibility for such
committee to be renamed from time to time or for any successor of
such committee delegated with similar duties to be known as the
respective committee. See, e.g., NASDAQ Exchange Notice, supra note
3, at 47423-24; proposed By-Law Article I(p) and Section 4.13(g).
The Proposals make similar changes with respect to the Nominating &
Governance Committee. See proposed By-Law Article I(p).
---------------------------------------------------------------------------
[[Page 60179]]
<bullet> Remove duplicative language in the By-Laws that specifies
that members of the Nominating & Governance Committee may be removed by
``majority vote of'' the Board, because the By-Laws already separately
provide the voting standards for all decisions of the Board.\27\
---------------------------------------------------------------------------
\27\ See, e.g., NASDAQ Exchange Notice, supra note 3, at 47424.
---------------------------------------------------------------------------
<bullet> Modify the quorum requirement for Board committees to
specify that a majority of the members of a committee then serving in
office, rather than a majority of total members on the committee, as is
currently the case, shall constitute a quorum.\28\
---------------------------------------------------------------------------
\28\ See, e.g., NASDAQ Exchange Notice, supra note 3, at 47424.
---------------------------------------------------------------------------
Proposed Amendments to Article VII
<bullet> Delete outdated references to Nasdaq's corporate
structure, including references to having one President that is a
director, or that has executive authority over the entire company, and
add provisions that contemplate more than one president.
<bullet> Make the specified list of officers to be elected by the
Board permissive rather than mandatory.
<bullet> Modify the process and authority for appointing Vice
Presidents and providing that each Vice President shall have all powers
and duties usually incident to the office of a Vice President, except
as specifically limited.
<bullet> Modify who may assign powers and duties to Presidents,
Vice Presidents, the Secretary, and the Treasurer.\29\
---------------------------------------------------------------------------
\29\ See id.
---------------------------------------------------------------------------
<bullet> Clarify that the obligation to pay claims or expenses
related to the indemnification of directors, officers, employees, and
agents is limited to those claims and expenses not prohibited by
applicable law.\30\
---------------------------------------------------------------------------
\30\ See, e.g., NASDAQ Exchange Notice, supra note 3, at 47425.
---------------------------------------------------------------------------
Proposed Amendments to Article IX
<bullet> Broaden the scope of officers authorized to sign stock
certificates.
<bullet> Provide that applicable law will control whether Nasdaq is
able to treat stockholders of record as shown on the stock ledgers as
owners thereof and as the persons entitled to vote such shares and to
receive notices, as well as when Nasdaq is bound to recognize any
equitable claim to, or interest in, any shares on the part of any other
person.
<bullet> Provide that Nasdaq shall be authorized, rather than the
Board or an authorized committee thereof, to take certain actions with
respect to lost, stolen, or destroyed certificates.
Proposed Amendments to Article X
<bullet> Replace an existing provision regarding the authority for
the execution of contracts and other documents with a provision that
more closely reflects Nasdaq's current policies and procedures on
signatory authority.
<bullet> Replace an existing provision regarding the required form
of records with a provision that conforms to updated Delaware law.\31\
---------------------------------------------------------------------------
\31\ See id.
---------------------------------------------------------------------------
Proposed Amendments to Article XI
<bullet> Amend the By-Laws to reflect changes to the emergency by-
law provisions of the DGCL.\32\
---------------------------------------------------------------------------
\32\ See id.
---------------------------------------------------------------------------
Proposed Amendments to Article XIII
<bullet> Provide a new forum selection provision.\33\
---------------------------------------------------------------------------
\33\ See id. The Exchanges note that the by-laws of Cboe Global
Markets, Inc., as well as those of CME Group, Inc., contain forum
selection provisions similar to those proposed by the Exchanges. See
id. at 47426, n.75.
---------------------------------------------------------------------------
III. Discussion and Commission's Findings
After careful review, the Commission finds that the Proposals are
consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities
exchange.\34\ Specifically, the Commission finds that the Proposals are
consistent with Section 6(b) of the Act \35\ in general, and, in
particular, with the requirement of Section 6(b)(1) \36\ that a
national securities exchange be so organized and have the capacity to
be able to carry out the purposes of the Act and to comply, and to
enforce compliance by its members and persons associated with its
members, with the provisions of the Act, the rules and regulations
thereunder, and the rules of the exchange. The Commission also finds
that the Proposals are consistent, in particular, with the requirement
of 6(b)(5) that the rules of a national securities exchange are
designed, in general, to protect investors and the public interest.\37\
---------------------------------------------------------------------------
\34\ Additionally, in approving the Proposals, the Commission
has considered the proposed rules' impact on efficiency,
competition, and capital formation. See 15 U.S.C. 78c(f).
\35\ 15 U.S.C. 78f(b).
\36\ 15 U.S.C. 78f(b)(1).
\37\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
The Commission finds that the Proposals are designed to help to
ensure that the Exchanges are so organized and have the capacity to be
able to carry out the purposes of the Act, and to protect investors and
the public interest. The Exchanges state that the proposed changes to
the Certificate are in the public interest as they would update it
consistent with developments in DGCL that enable companies incorporated
in Delaware to limit the liability of certain of their officers in
narrow circumstances. As discussed in the Notices, the Exchanges also
state that such amendments are increasingly common for public
companies; that the number of stockholder proposals calling for such
amendments have continued to increase since 2022 when the DGCL was
amended; and that the majority of these proposals have been approved by
wide margins.\38\ The Exchanges state that failing to adopt such
amendments could potentially expose Nasdaq to higher litigation
expenses and impact its recruitment and retention of officer
candidates.\39\
---------------------------------------------------------------------------
\38\ See, e.g., NASDAQ Exchange Notice, supra note 3, at 47419,
n. 3, and accompanying text.
\39\ See, e.g., NASDAQ Exchange Notice, supra note 3, at 47419.
---------------------------------------------------------------------------
The Commission also finds that proposed amendments to the By-Laws
are consistent with the Act. With respect to the proposed changes to
the By-Laws, the Exchanges state that:
<bullet> the proposed changes to Article III are in the public
interest as they would update the By-Laws and conform them to current
practices and developments in DGCL;
<bullet> the proposed changes to Article IV are either clarifying
in nature or otherwise purport to refine governance practices by
providing Nasdaq with greater flexibility with respect to such matters
as the qualifications of directors, quorum and voting, or otherwise
update such provisions to make them more consistent with current
governance practices as well as the policies and procedures of Nasdaq;
<bullet> the proposed changes to Articles VII through XIII are in
the public interest and consistent with the protection of investors as
they are designed to accomplish several objectives, including updating
the By-Laws to conform with current practices or recent developments in
Delaware law, aligning the By-Laws with current Nasdaq policies and
procedures, and enhancing the clarity of the By-Laws, thus facilitating
their proper application and use; and
<bullet> the remaining changes can be characterized as non-
substantive, because they are designed to either correct typographical
errors, conform
[[Page 60180]]
Nasdaq governance documents to terminology in the By-Laws, remove
obsolete text, or otherwise make non-substantive revisions to the By-
Laws to make them clearer and easier to use.\40\
---------------------------------------------------------------------------
\40\ See, e.g., NASDAQ Exchange Notice, supra note 3, at 47427.
---------------------------------------------------------------------------
The Commission finds that the proposed changes are designed to
update the By-Laws for conformance with DGCL and litigation and
corporate governance trends, conform the By-Laws with Nasdaq's
corporate structure and policies and procedures, or make other
clarifying and non-substantive changes. With respect to the proposed
changes to Nasdaq's Audit Committee structure,\41\ the Exchanges states
that such committee must, in any event, satisfy other applicable
independence standards.\42\ Certain of the proposed amendments would
also clarify when the universal proxy rule would apply.\43\ Similar to
the Exchanges' proposed amendments to the Certificate, the proposed
amendments to the By-Laws should help to ensure that the Exchanges are
so organized and have the capacity to be able to carry out the purposes
of the Act, and are designed to protect investors and the public
interest.\44\
---------------------------------------------------------------------------
\41\ See supra note 26.
\42\ See, e.g., NASDAQ Exchange Notice, supra note 3, at 47423.
By-Laws Section 4.13(g), currently and as proposed, requires that
Nasdaq's Audit Committee be comprised of three or more directors,
each of whom shall be an independent director within the meaning of
the rules of the NASDAQ Stock Market and Section 10A of the Act.
\43\ See, e.g., NASDAQ Exchange Notice, supra note 3, at 47421-
22.
\44\ The Commission has previously stated that certain
provisions in the Nasdaq governing documents are designed to ensure
that each self-regulatory subsidiary can carry out its regulatory
obligations. See, e.g., Securities Exchange Act Release No. 78119
(June 21, 2016) 81 FR 41611 (approving proposed rule changes by ISE,
GEMX, and MRX relating to their acquisition by Nasdaq) at 41613.
Such provisions are not impacted by the Proposals.
---------------------------------------------------------------------------
IV. Conclusion
For the foregoing reasons, the Commission finds that the Proposals
are consistent with the Act and the rules and regulations thereunder
applicable to a national securities exchange.
It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\45\ that the Proposals (SR-NASDAQ-2025-080; SR-BX-2025-024; SR-
GEMX-2025-27; SR-MRX-2025-23; SR-Phlx-2025-56; SR-ISE-2025-31) be, and
hereby are, approved.
---------------------------------------------------------------------------
\45\ 15 U.S.C. 78s(b)(2).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\46\
---------------------------------------------------------------------------
\46\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2025-23668 Filed 12-22-25; 8:45 am]
BILLING CODE 8011-01-P
</pre></body>
</html>Indexed from Federal Register on December 23, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.