Self-Regulatory Organizations; Boston Stock Exchange Clearing Corporation; Notice of Filing of Proposed Rule Change To Amend the Amended and Restated Certificate of Incorporation and By-Laws of Its Parent Corporation, Nasdaq, Inc.

<NOTICE> SECURITIES AND EXCHANGE COMMISSION <DEPDOC>[Release No. 34-104156; File No. SR-BSECC-2025-001]</DEPDOC> <SUBJECT>Self-Regulatory Organizations; Boston Stock Exchange Clearing Corporation; Notice of Filing of Proposed Rule Change To Amend the Amended and Restated Certificate of Incorporation and By-Laws of Its Parent Corporation, Nasdaq, Inc.</SUBJECT> <DATE>September 30, 2025.</DATE> Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”), <SU>1</SU> <FTREF/> and Rule 19b-4 thereunder, <SU>2</SU> <FTREF/> notice is hereby given that on September 29, 2025, Boston Stock Exchange Clearing Corporation (“BSECC”) 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 BSECC. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. <FTNT> <SU>1</SU>  15 U.S.C. 78s(b)(1). </FTNT> <FTNT> <SU>2</SU>  17 CFR 240.19b-4. </FTNT> <HD SOURCE="HD1">I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change</HD> BSECC proposes to amend the Amended and Restated Certificate of Incorporation (“Certificate”) and By-Laws (“By-Laws”) of its parent corporation, Nasdaq, Inc. (“NASDAQ” or “Corporation”). The proposed changes would align the Certificate with certain amendments to the Delaware General Corporation Law as well as update the By-Laws to reflect recent changes in law and best practices, as discussed below. The text of the proposed rule change is available on BSECC's website at <E T="03">https://listingcenter.nasdaq.com/rulebook/bsecc/rulefilings,</E> and at the principal office of BSECC. <HD SOURCE="HD1">II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change</HD> In its filing with the Commission, BSECC 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. BSECC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. <HD SOURCE="HD2">A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change</HD> <HD SOURCE="HD3">1. Purpose</HD> BSECC is proposing to update the Certificate to reflect certain amendments to the Delaware General Corporation Law. BSECC is also proposing to update the By-Laws to reflect recent changes in law and best practices as discussed below. <HD SOURCE="HD3">(a) Proposed Amendments to the Certificate</HD> <HD SOURCE="HD3">(1) Background</HD> On April 23, 2025, NASDAQ's Board of Directors approved proposed amendments to the Certificate to provide for limited officer exculpation. On June 11, 2025, NASDAQ held its Annual Meeting of Stockholders, during which its stockholders considered and approved the Certificate amendments. In 2022, Delaware amended the Delaware General Corporation Law to enable companies incorporated in Delaware, such as NASDAQ, to limit the liability of certain of their officers in narrow circumstances. This change was made to address situations where directors would be dismissed from litigation, but the officers, who were not exculpated, had to continue in the litigation to show their actions were not grossly negligent. Generally, this issue arises in the mergers and acquisitions context and often relates to claims that a particular disclosure document was deficient. The Certificate amendment would exculpate covered officers from monetary liability for breach of the duty of care in a manner similar to that already permitted for directors. However, it would not exculpate such officers in connection with derivative actions. Failing to adopt the Certificate amendment could potentially expose the Company to higher litigation expenses associated with lawsuits, regardless of merit, and/or impact the Company's recruitment and retention of exceptional officer candidates who conclude that the potential exposure to liabilities, costs of defense, and other risks of proceedings exceed the benefits of serving as one of the Company's officers. BSECC notes that amendments providing for officer exculpation are increasingly common for public companies, and that the number of shareholder proposals calling for such amendments—the majority of which have been approved by wide margins—have continued to increase since 2022 when the Delaware law was passed. <SU>3</SU> <FTREF/> <FTNT> <SU>3</SU>   <E T="03">See, e.g.,</E> Andrew J. Noreuil and Andrew J. Stanger, <E T="03">Developments and Trends in Delaware Officer Exculpation Charter Amendments,</E> Harv. L. Sch. F. On Corp. Governance (June 14, 2024), <E T="03">https://corpgov.law.harvard.edu/2024/06/14/developments-and-trends-in-delaware-officer-exculpation-charter-amendments/;</E> Megan W. Shaner, <E T="03">Understanding Officer Exculpation Under the MBCA Amendments,</E> Bus. L. Today (Nov. 19, 2024) <E T="03">https://businesslawtoday.org/2024/11/understanding-officer-exculpation-mbca-amendments/.</E> </FTNT> Under NASDAQ'S Certificate and By-Laws, BSECC must determine whether proposed amendments to the Certificate must be filed with the Commission prior to taking effect. On April 30, 2025, the Board of BSECC determined that the proposed amendments to the Certificate must be filed with the Commission. <HD SOURCE="HD3">(2) Proposed Amendments</HD> To effect the changes discussed above, BSECC proposes to amend Article Sixth of NASDAQ's Amended and Restated Certificate of Incorporation as follows. Paragraph A of Article Sixth of the Certificate provides that “[a] director of Nasdaq shall not be liable to Nasdaq or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended.” Paragraph B of Article Sixth provides that “[a]ny repeal or modification of paragraph A shall not adversely affect any right or protection of a director of Nasdaq existing hereunder with respect to any act or omission occurring prior to such repeal or modification.” In each of these provisions, BSECC proposes to add, after each instance of the word “director,” the words “or officer.”  <SU>4</SU> <FTREF/> <FTNT> <SU>4</SU>   <E T="03">See</E> proposed Article Sixth of the Certificate. </FTNT> BSECC believes the proposed changes to paragraphs A and B of Article Sixth of the Certificate would update the Certificate to reflect amendments to the Delaware General Corporation Law  <SU>5</SU> <FTREF/> that enable companies incorporated in Delaware, such as NASDAQ, to limit the liability of certain of their officers in narrow circumstances, as discussed above. <FTNT> <SU>5</SU>   <E T="03">See</E> 8 Del. C. Section 102(b)(7). </FTNT> <HD SOURCE="HD3">(b) Proposed Amendments to the By-Laws</HD> <HD SOURCE="HD3">(1) Background</HD> On April 23, 2025, NASDAQ's Board of Directors approved proposed amendments to the By-Laws to reflect changes in law and best practices that have occurred since the most recent amendments to the By-Laws in 2016. As discussed above, under NASDAQ's Certificate and By-Laws, BSECC must determine whether proposed amendments to the By-Laws must be filed with the Commission prior to taking effect. On April 30, 2025, BSECC determined that the proposed amendments to the By-Laws must be filed with the Commission. <HD SOURCE="HD3">(2) Proposed Amendments</HD> To effect the changes discussed above, BSECC proposes to amend the By-Laws as follows. <HD SOURCE="HD3">(i) Article III Meetings of Stockholders</HD> Section 3.1(b) of Article III of the By-Laws sets forth the requirements for a stockholder's notice to NASDAQ of nominations or other business to be considered at an annual meeting. Section 3.1(b)(i) of the By-Laws currently sets forth the information that a stockholder must provide to NASDAQ about each person whom the stockholder proposes to nominate for election as a director. Section 3.1(b)(i) of the By-Laws provides in part that the Corporation may require any proposed nominee to furnish such other information it may reasonably require to determine the eligibility of such proposed nominee to serve as director of the Corporation or that could be material to a reasonable stockholder's understanding of the independence, or lack of independence, of such proposed nominee. <SU>6</SU> <FTREF/> BSECC proposes to amend Section 3.1(b)(i) to narrow the scope of information that may be requested under this provision. Specifically, BSECC proposes to provide that the Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine whether the-proposed nominee is qualified under the Restated Certificate of Incorporation, the By-Laws, the rules and regulations of any stock exchange applicable to the Corporation, or any law or regulation applicable to the Corporation to serve as a director and/or independent director of the Corporation. <SU>7</SU> <FTREF/> BSECC believes that the proposed changes address concerns that the current provision is unnecessarily open-ended by limiting the information that may be requested to information on the nominee's qualifications to serve as director and/or independent director of the Corporation. BSECC also proposes certain clarifying changes to Section 3.1(b)(i) of the By-Laws. Specifically, BSECC proposes to insert, in its first full sentence, the word “Corporation's” and the words “of such Proposing Person and in the accompanying proxy card.”  <SU>8</ ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 79k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━