Nasdaq Amends Bylaws to Fit New Delaware Laws
Published Date: 10/1/2025
Notice
Summary
Nasdaq GEMX is updating the official rules and documents of its parent company, Nasdaq, Inc., to match new Delaware laws and modern business practices. These changes affect how Nasdaq runs things behind the scenes but won’t cost extra or change trading right now. The updates aim to keep Nasdaq sharp, legal, and ready for the future.
Analyzed Economic Effects
6 provisions identified: 4 benefits, 1 costs, 1 mixed.
Officer Liability Limits Added
Nasdaq's Certificate would add the word "officer" to Article Sixth so certain officers can be exculpated from monetary liability for breaches of the duty of care, consistent with 8 Del. C. §102(b)(7). The Board approved this change on April 23, 2025 and Nasdaq stockholders approved the Certificate amendments on June 11, 2025.
Universal Proxy Compliance Requirement
If a Proposing Person files under SEC Rule 14a-19 (the universal proxy rule) but later fails to meet Rule 14a-19(a)(2) or (a)(3), Nasdaq would disregard those proposed nominees; a Proposing Person must deliver reasonable evidence of compliance no later than five (5) business days prior to the meeting. This sets a firm compliance and evidence timeline tied to the universal proxy rule.
Committee Powers and Stock Authority Expanded
Nasdaq would opt into Delaware Section 141(c)(2) and amend its By-Laws to remove certain limitations on committee powers, aligning committee authority with Delaware law and allowing committees broader delegation, including as it relates to setting terms of stock and preferred stock designations.
Narrower Nominee Info Requests
Nasdaq would limit what information it can require from a proposed director nominee: companies may request only information reasonably necessary to determine whether the nominee is qualified under the Certificate, By-Laws, exchange rules, or law. This narrows the current, broader language about information that could be "material to a reasonable stockholder's understanding" of independence.
Tighter Standards for Special Meetings
Nasdaq would replace the phrase "acting in concert" with "knowingly coordinating" when assessing stockholders seeking special meetings. The change is intended to reduce use of the broader phrase in litigation and aligns advance notice rules with recent practice.
Proxy Access Exception for Universal Proxy
Nasdaq would amend proxy access rules so Section 3.6 remains the exclusive method for proxy nominees except for nominees included pursuant to, and in compliance with, Section 14a-19 of the Securities Exchange Act (the universal proxy rule). This creates an explicit exception allowing nominees via the SEC's universal proxy process.
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