

[Federal Register: May 5, 2006 (Volume 71, Number 87)]
[Notices]               
[Page 26589-26592]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my06-144]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53734; File No. SR-Phlx-2005-93]

 
Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; 
Order Approving a Proposed Rule Change and Amendment Nos. 1, 2, 3, 4, 
and 5 Thereto, and Notice of Filing and Order Granting Accelerated 
Approval to Amendment Nos. 6 and 7, Relating to Amendments to Its By-
Laws and Charter in Connection With a Restructuring of Its Board of 
Governors

April 27, 2006.

I. Introduction

    On December 30, 2005, the Philadelphia Stock Exchange, Inc. 
(``Phlx'' or ``Exchange'') 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\ a proposed rule change to amend its By-laws (``By-
Laws'') and Restated Certificate of Incorporation (``Charter'') to 
revise the current structure of the Exchange's Board of Governors 
(``Board''). On February 16, 2006, the Exchange filed Amendment No. 1 
to the proposed rule change; on March 10, 2006, the Exchange filed 
Amendment No. 2 to the proposed rule change; on March 17, 2006, the 
Exchange filed Amendment No. 3 to the proposed rule change; and on 
March 20, 2006, the Exchange filed Amendment Nos. 4 and 5 to the 
proposed rule change.\3\ The proposed rule change was published for 
comment in the Federal Register on March 23, 2006.\4\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ For a brief description of these amendments, see Securities 
Exchange Act Release No. 53518 (March 20, 2006), 71 FR 14766 (March 
23, 2006) (``Notice''), at notes 3 through 7, inclusive.
    \4\ See Notice.
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    The Commission received no comments on the proposal. On April 25, 
2006, the Exchange filed Amendment No. 6 to the proposed rule 
change,\5\ and on April 27, 2006, the Exchange filed Amendment No. 7 to 
the proposed rule change.\6\ This order approves the proposed rule 
change, as amended by Amendment Nos. 1, 2, 3, 4, and 5. Simultaneously, 
the Commission provides notice of filing of Amendment Nos. 6 and 7, and 
grants accelerated approval of Amendment Nos. 6 and 7.
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    \5\ In Amendment No. 6, the Exchange consolidated the rule text 
of the proposed rule change, as revised by prior amendments, into a 
single document; revised the proposed definition of ``Stockholder 
Governor'' in the Charter and By-Laws to clarify its meaning; and 
made minor revisions and clarifying changes to the rule text and 
purpose section of the filing. Amendment No. 6 superseded and 
replaced the proposed rule change, as amended, in its entirety.
    \6\ In Amendment No. 7, the Exchange proposed to change the word 
``affiliation'' to ``relationship'' in the proposed definition of 
``Material Relationship;'' incorporated the portion of the statutory 
basis section of the filing that was inadvertently omitted in 
Amendment No. 6, and made other technical changes to the proposed 
rule text.
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II. Description of the Proposal

    The proposed rule change, as amended, would revise both the 
Exchange's By-Laws and Charter to restructure the composition of the 
Board and certain Board committees. Specifically, the proposed rule 
change would create a majority independent Board; adopt definitions of 
``Independent'' and ``Independent Governor'' and adopt independence 
determination standards based principally on the Commission's proposed 
SRO governance rulemaking; \7\ convert all Non-Industry \8\ Governor 
positions on the Board to Independent Governor positions and add an 
additional Independent Governor; eliminate the positions of On-Floor 
and Off-Floor Governors \9\ and create Member Governor and Stockholder 
Governor positions; \10\ revise the categories of Governors that are 
elected by Phlx members; \11\ reduce the number of Vice-Chairmen of the 
Board from two to one and adopt new criteria for selecting the Vice-
Chairman; and make other revisions, including with respect to the 
composition of various Board standing committees.
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    \7\ See Securities Exchange Act Release No. 50669 (November 18, 
2004), 69 FR 71126 (December 8, 2004) (``Proposed SRO Governance 
Rulemaking'').
    \8\ See Phlx By-Laws Article I, section 1-1(t) for a definition 
of ``non-industry'' when used in the context of Governors or 
committee members.
    \9\ See Phlx By-Laws Article IV, section 4-1 for a discussion of 
On-Floor and Off-Floor Governors.
    \10\ See proposed Phlx By-Laws Article I, Sections 1-1(u) 
(defining ``Member Governor'') and 1-1(hh) (defining ``Stockholder 
Governor'').
    \11\ See infra note 17 and accompanying text.
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A. Board Composition

    Currently, the Board consists of 22 Governors: The Chairman of the 
Board, who is the Chief Executive Officer of the Exchange; 11 Non-
Industry Governors (including at least five Public

[[Page 26590]]

Governors); \12\ five On-Floor Governors; and five Off-Floor Governors. 
The Exchange has proposed to increase the number of Governors to 23 and 
to revise the composition of the Board to consist of: the Chairman of 
the Board, who is the Chief Executive Officer of the Exchange; 12 
Independent Governors; six Stockholder Governors; two Member Governors; 
one Philadelphia Board of Trade (``PBOT'') Governor; and one Vice-
Chairman.
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    \12\ See Phlx By-Laws Article I, section 1-1(y) for a definition 
of ``public'' when used in the context of Governors or committee 
members.
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1. Majority Independent Board
    The Exchange proposes to convert all Non-Industry and Public 
Governor positions to Independent Governor positions and to add an 
additional Independent Governor, for a total of 12 Independent 
Governors. Under the proposal, an ``Independent Governor'' would be 
defined as a Governor who has no Material Relationship with the 
Exchange or any affiliate of the Exchange, any member of the Exchange 
or any affiliate of such member, or any issuer of securities that are 
listed or traded on the Exchange or a facility of the Exchange.\13\ 
``Material Relationship'' would be defined as a relationship, 
compensatory or otherwise, that could reasonably affect the independent 
judgment or decision-making of a Governor.\14\ The proposed rule change 
would require the Nominating, Elections and Governance Committee first 
to ascertain that candidates for Independent Governor positions are 
qualified under the proposed definition of ``Independent'' prior to 
nominating them,\15\ and then would require the Board to make 
subsequent independence determinations following an Independent 
Governor's nomination at least annually, and as often as necessary in 
light of a Governor's circumstances.\16\
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    \13\ See proposed Phlx By-Laws Article I, sections 1-1(o) and 
(p). See also proposed Phlx Charter Article FOURTH (b)(iii)(A).
    \14\ See proposed Phlx By-Laws Article I, section 1-1(s).
    \15\ See proposed changes to Phlx By-Laws Article III, section 
3-4(a) and Article XXVIII, Section 28-3(c).
    \16\ See proposed ``Annual Independence Review'' in the Phlx By-
Laws Article IV, section 4-4(b).
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2. Designated Governors
    The Exchange proposes to replace the five On-Floor Governor 
positions with five Designated Governor positions. The ``Designated 
Governors'' would consist of the two Member Governors, the two 
Designated Independent Governors, and the one PBOT Governor.\17\ A 
``Member Governor'' is defined as a Governor who is a member or a 
general partner or an executive officer (vice-president and above) of a 
member organization and is duly elected to fill one of the two (2) 
vacancies on the Board of Governors allocated to Member Governors.\18\ 
The ``Designated Independent Governors'' are the two Independent 
Governors who are elected by the Phlx members.\19\ The ``PBOT 
Governor'' is a Governor who is a member of the PBOT and is duly 
elected to fill the one (1) vacancy on the Board allocated to the PBOT 
Governor.
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    \17\ At the annual meeting of members and member organizations, 
member organization representatives elect the Designated Governors, 
who are then elected at the annual stockholders meeting by the 
holder of the Series A Preferred Stock. See Phlx By-Laws, Article 
III, section 3-2(a) and Article XXVIII, section 28-2.
    \18\ See proposed Phlx By-Laws Article I, section 1-1(u).
    \19\ The former 11 Non-Industry Governors were elected by the 
holders of the Exchange's Common Stock. Under the proposed rule 
change, two of the 12 Independent Governors would be Designated 
Independent Governors and would be elected by Phlx members and 
member organizations, through their respective member organization 
representatives, but the other 10 Independent Governors would be 
elected by the holders of the Exchange's Common Stock. See 
discussion infra sections II.A.3 and III.
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3. Stockholder Governors
    The Exchange also proposes to replace the five Off-Floor Governor 
positions with six Stockholder Governor positions. The Stockholder 
Governors would be elected by the holders of the Exchange's Common 
Stock. A ``Stockholder Governor'' is defined as a Governor who is a 
holder of Class A or Class B Common Stock in the Exchange or 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 Class A or Class B Common Stock in the Exchange or of any 
affiliate or subsidiary of such holder of Class A or Class B Common 
Stock and who is duly elected to fill one of the six vacancies on the 
Board of Governors allocated to the Stockholder Governors.\20\ In 
addition to electing the Stockholder Governors, the Exchange's Common 
Stock holders would elect 10 of the 12 Independent Governors.
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    \20\ See Amendment No. 6 (proposing to amend proposed Phlx By-
Laws Article I, section 1-1(hh). See also proposed Phlx Charter 
Article FOURTH (b)(iii)(A)).
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4. Single Vice-Chairman of the Board
    Currently, there are two Vice-Chairmen of the Board; one Vice-
Chairman is selected from one of the On-Floor Governors by the member 
organization representatives or, if there is no contest between or 
among Floor Governors, by the Board, and one Vice-Chairman is selected 
from one of the Off-Floor Governors by the Board.\21\ The Phlx proposes 
to amend its By-Laws to provide for a single Vice-Chairman of the 
Board, who would be recommended by the Chairman for nomination by the 
Nominating, Elections and Governance Committee and elected by the 
holders of Common Stock.\22\ The Vice-Chairman would serve as a 
Governor and would not be subject to any term limits.\23\ The Vice-
Chairman would be required to be an individual who, within the prior 
three years, has been a member primarily engaged in business on the 
Exchange's equity market or equity options market, or is a general 
partner, executive officer (vice-president or above) or a member 
associated with a member organization primarily engaged in business on 
the Exchange's equity market or equity options market.\24\
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    \21\ See Phlx By-Laws Article IV, section 4-2.
    \22\ See proposed Phlx By-Laws Article XXVIII, section 28-3(b) 
and proposed Phlx Charter Article FOURTH (b)(iii)(A).
    \23\ See proposed Phlx By-Laws Article IV, section 4-3(a).
    \24\ See proposed Phlx By-Laws Article V, section 5-2.
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B. Composition of Board Committees

    The Exchange proposes to revise the composition of certain Board 
committees to reflect the proposed Board restructuring.
1. Nominating, Elections and Governance Committee
    Currently, the Phlx's Nominating and Elections Committee is 
composed of seven members: The committee Chairman, who must be a Public 
Governor; three Non-Industry Governors; one Off-Floor Member, who may 
be a Governor; one On-Floor Equity Governor; and one On-Floor Equity 
Options Governor.\25\ The Exchange proposes to reduce the size of this 
committee to five members, consisting of: three Independent Governors 
(one of whom must be a Designated Independent Governor), one Member 
Governor, and one Stockholder Governor. The Exchange also proposes to 
rename the committee as the ``Nominating, Elections and Governance 
Committee.'' The Nominating, Elections and Governance Committee would 
select its Chairman from among the members of the committee that are 
Independent Governors.
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    \25\ See Phlx By-Laws Article X, section 10-19(a).
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2. Business Conduct Committee
    The Exchange's Business Conduct Committee currently is composed of 
nine members: Three Non-Industry

[[Page 26591]]

Governors (one of whom must be a Public Governor); one Equity Floor 
member; one Equity Options Floor member; one At-Large Floor member; and 
three Off-Floor members. The Exchange proposes to modify this 
committee's composition to be as follows: Three Independent Governors; 
four persons who are either Phlx members or associated with a member 
organization; one Phlx member whose business principally is carried out 
on the equity floor; and one Phlx member whose business is principally 
carried out on the equity options floor.
3. Compensation Committee
    The Phlx's Compensation Committee is composed of five members: 
three Non-Industry Governors (one of whom must be a Public Governor) 
and the two Vice-Chairmen of the Board. The Chairman of the committee 
must be one of the Non-Industry Governors. The proposal would modify 
the composition of this committee to be as follows: four Independent 
Governors, one of whom must serve as Chairman of the committee, and the 
Vice-Chairman of the Board.
4. Executive Committee
    The Exchange's Executive Committee is composed of nine members: The 
Chairman of the Board who serves as the committee's chairman; the two 
Vice-Chairmen of the Board; the Chairman of the Finance Committee; the 
Chairmen of the two floor committees whose floors are not represented 
by the On-Floor Vice-Chairman; one Off-Floor Governor; and two Non-
Industry Governors, one of whom must be a Public Governor. The proposal 
would modify the committee's composition to be as follows: the Chairman 
of the Board; the Vice-Chairman of the Board; two Stockholder 
Governors; two Independent Governors; the Chairman of the Finance 
Committee; and two Chairmen of floor committees.
5. Quality of Markets Committee
    The Exchange proposes to modify the composition of the Quality of 
Markets Committee. Specifically, the Exchange proposes to convert all 
Non-Industry committee member positions to Independent committee member 
positions and all Industry committee member positions to Stockholder 
and Member committee member positions. The Quality of Markets Committee 
would be required to include as many Independent committee members as 
it does Stockholder and Member committee members.

C. Other Changes

    The Exchange also proposes to make other changes to its Charter and 
By-Laws. The Exchange proposes to remove the requirement in Article 
NINTH of its Charter that any action required or permitted to be taken 
at any meeting of the Exchange's stockholders may be taken without a 
meeting, without prior notice and without a vote, only with the 
unanimous written consent of all the stockholders entitled to vote 
thereon. The default provision in the Delaware General Corporate Law 
statute would apply instead.\26\ The Exchange also made minor and/or 
clarifying changes to its By-Laws.\27\
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    \26\ Under title 8, section 228(a) of the Delaware Code, unless 
otherwise provided in a company's certificate of incorporation, any 
action that may be taken at a stockholders meeting may be taken 
without a meeting, without prior notice, and without a vote, upon 
the written consent of at least the minimum number of votes that 
would be necessary to take such action at a meeting if all the 
shares entitled to vote thereon were present and voted.
    \27\ These minor changes include capitalizing certain defined 
terms (``Stockholder,'' ``Member,'' ``Member Organization'') and 
providing a more specific a citation to its arbitration rules.
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D. Transition Period

    The Exchange represents that the proposed amendments to its Charter 
and By-Laws would require minimal changes to the existing composition 
of the Board, subject to a formal analysis and determination by the 
Board of the qualifications of the Independent Governors, and would 
largely result in a reclassification of current Board positions. The 
Exchange further represents that, upon approval of the proposed rule 
change, it intends to hold the annual meeting of its members and member 
organizations, followed by the annual meeting of its stockholders, in 
order to elect the class of 2009 Governors. The class of 2009 Governors 
would be nominated and elected pursuant to the new requirements of the 
amended Charter and By-Laws. The Exchange would permit the current 
classes of 2007 and 2008 Governors to complete their terms, but would 
have the Nominating, Elections and Governance Committee, with the 
Board's approval, appoint such Governors to fill the new positions 
established by the amended Charter and By-Laws until the expiration of 
their terms in 2007 and 2008, respectively.

III. Discussion and Commission Findings

    After careful consideration, the Commission finds that the proposed 
rule change, as amended, is consistent with the requirements of the Act 
and the rules and regulations thereunder applicable to a national 
securities exchange.\28\ In particular, the Commission finds that the 
proposed rule change is consistent with the requirements of section 
6(b)(3) of the Act, which provides that the rules of an exchange must 
assure a fair representation of its members in the selection of its 
directors and administration of its affairs and provide that one or 
more directors shall be representative of issues and investors and not 
be associated with a member of the exchange, broker, or dealer.\29\
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    \28\ In approving this proposed rule change, the Commission 
notes that it has considered the proposed rule's impact on 
efficiency, competition and capital formation. See 15 U.S.C. 78c(f).
    \29\ 15 U.S.C. 78f(b)(3).
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    The Phlx's Board of Governors currently is composed of the Chairman 
of the Board (who must be the Exchange's Chief Executive Officer) and 
21 other Governors. By adding a new Governor position, which would be 
classified as an Independent Governor position, the Exchange would 
create a Board that is composed of a majority of Independent Governors, 
i.e., 12 of the 23 Governors on the Board would have to satisfy the 
proposed independence standards. The Nominating, Elections and 
Governance Committee would be required to evaluate whether potential 
candidates for the Independent Governor positions satisfy the 
Exchange's independence criteria prior to nominating such candidates 
for election. Moreover, upon an Independent Governor's election, the 
Board would be required to reassess such Governor's independence at 
least annually and as often as necessary in light of such Governor's 
circumstances. The Commission believes that the majority independent 
Board should help the Exchange mitigate any conflicts of interest that 
may arise when persons with a nexus to the Exchange are involved in key 
decisions.\30\ Furthermore, the proposal to conduct periodic 
independence determinations should help ensure that the Exchange's 
independence standards are maintained during an Independent Governor's 
tenure on the Board.
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    \30\ The Commission notes that the Phlx's proposals to create a 
majority independent Board, to impose independence criteria for the 
majority of its Governors and to assess periodically the 
independence determinations for those Governors are consonant with 
similar provisions in the Proposed SRO Governance Rulemaking. The 
Commission notes, however, that the Exchange may be required to make 
additional changes to further strengthen its governance structure, 
depending upon the results of this rulemaking.
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    Currently, the five Governors elected by Phlx members, through 
their member organization representatives, consist of

[[Page 26592]]

the four On-Floor Governors and one Industry Governor who is a member 
of PBOT. The Exchange proposes to revise the categories of Governors 
who are elected by members to consist of two Member Governors, one PBOT 
Governor, and two Designated Independent Governors (collectively, the 
Designated Governors). Although the proposal would reduce from four to 
two the number of Governors who are Phlx members and are elected by the 
Exchange's membership, it would add two Designated Independent 
Governors to be elected by Phlx members. Accordingly, it would not 
reduce the number of Governors elected by Phlx members. Moreover, the 
proposal would not alter the right of Phlx members to submit 
independent nominations for the Designated Governor positions.
    In addition, the Exchange proposes to revise the composition of its 
Nominating, Elections and Governance Committee. This committee 
currently is composed of seven members, two of whom are On-Floor 
Governors and thus are elected by Phlx members. Under the Exchange's 
proposal, the committee would consist of five members, two of whom must 
be a Designated Independent Governor and a Member Governor. The 
Exchange also proposes revisions to the composition of its Business 
Conduct Committee by requiring three of its nine members to be 
Independent Governors, four committee members to be Phlx members or 
persons associated with a member organization, one committee member to 
be a Phlx member who primarily conducts business on the Phlx's equity 
floor, and one committee member to be a Phlx member who primarily 
conducts business on the equity options floor.
    In the Commission's view, the revisions to the composition of the 
Board, the Nominating, Elections and Governance Committee, and the 
Business Conduct Committee provide for the fair representation of 
members in the selection of the Exchange's directors and the 
administration of its affairs, consistent with the requirements of 
section 6(b)(3) of the Act.\31\
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    \31\ 15 U.S.C. 78f(b)(3).
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    The Commission finds good cause to approve Amendment Nos. 6 and 7 
to the proposed rule change prior to the 30th day after the amendment 
is published for comment in the Federal Register. In Amendment No. 6, 
the Exchange proposes to incorporate the proposed definitions of 
``Member Organization,'' ``Vice-Chairman,'' ``Material Relationship,'' 
and ``Stockholder'' as contained in the Phlx By-Laws into Article 
FOURTH of its Charter because these terms are used throughout the Phlx 
Charter. In Amendment No. 6, the Exchange also proposes to revise the 
definition of ``Stockholder Governor'' to clarify the categories of 
persons eligible to serve as a Stockholder Governor. In Amendment No. 
7, the Exchange proposes to change the word ``affiliation'' in the 
proposed definition of ``Material Relationship'' to ``relationship'' 
and to incorporate the portion of text in the statutory basis section 
of the proposed rule change that was inadvertently omitted in Amendment 
No. 6. In both Amendment Nos. 6 and 7, the Exchange proposes other 
minor revisions that are technical in nature and do not affect the 
substance of the proposed rule change.
    The Commission believes that the proposed revisions made by 
Amendment Nos. 6 and 7 clarify the proposed rule change, as amended, 
and do not change its substance. Accordingly, the Commission finds good 
cause to accelerate approval of Amendment Nos. 6 and 7.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether Amendment Nos. 6 
and 7 are 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 rule-comments@sec.gov. Please include 

File No. SR-Phlx-2005-93 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-Phlx-2005-93. 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 Commissions 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 inspection and copying in the 
Commission's Public Reference Room. Copies of such filing also will be 
available for inspection and copying at the principal office of the 
Phlx. 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-2005-93 and should be submitted by May 26, 2006.

V. Conclusion

    It is therefore ordered, pursuant to section 19(b)(2) of the 
Exchange Act,\32\ that the proposed rule change (SR-Phlx-2005-93), as 
amended by Amendment Nos. 1, 2, 3, 4, and 5, be, and hereby is, 
approved and that Amendment Nos. 6 and 7 to the proposed rule change 
be, and hereby are, approved on an accelerated basis.
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    \32\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\33\
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    \33\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
 [FR Doc. E6-6776 Filed 5-4-06; 8:45 am]

BILLING CODE 8010-01-P
