
[Federal Register: April 29, 2008 (Volume 73, Number 83)]
[Notices]               
[Page 23293-23301]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ap08-118]                         


[[Page 23293]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57703; File No. SR-Phlx-2008-31]

 
Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; 
Notice of Filing of Proposed Rule Change Relating to Changes to Phlx's 
Governing Documents in Connection With the Acquisition of Phlx by the 
Nasdaq Stock Market, Inc.

April 23, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on April 21, 2008, the Philadelphia Stock Exchange, Inc. (``Phlx'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been substantially 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 Phlx proposes to: (1) Amend the Exchange's Restated Certificate 
of Incorporation (``Certificate of Incorporation''), By-Laws, and Rules 
of the Board of Governors (``Rules''), and adopt certain Rules to 
reflect changes in connection with the proposed acquisition of the 
Exchange by The Nasdaq Stock Market, Inc. now known as The NASDAQ OMX 
Group, Inc. (``NASDAQ OMX''); and (2) update certain language and make 
other minor, technical amendments to the Certificate of Incorporation, 
By-Laws, and Rules. The Exchange also requests Commission approval for 
an affiliation between the Exchange and certain broker-dealer 
subsidiaries of the NASDAQ OMX, as described herein. The Exchange 
requests that the proposed rule change become operative upon 
consummation of the Nasdaq OMX Merger.\3\
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    \3\ Telephone conversation between Cynthia Hoekstra, Vice 
President, Phlx, and Richard Holley III, Senior Special Counsel, 
Division of Trading and Markets, Commission, on April 23, 2008.
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    The text of the proposed rule change is available at the Exchange, 
the Commission's Public Reference Room, and http://www.Phlx.com/
exchange/phlx_rule_fil.htm. The text of Exhibits 5A through 5C of the 
proposed rule change is also available on the Commission's Web site 
(http://www.sec.gov/rules/sro/phlx.shtml).

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
    On November 7, 2007, NASDAQ OMX announced that it had entered into 
an agreement with the Exchange pursuant to which NASDAQ OMX would 
acquire all of the outstanding capital stock of the Exchange. In 
connection with this acquisition, Pinnacle Merger Corp., a Delaware 
corporation and wholly owned subsidiary of NASDAQ OMX, would be merged 
with and into the Exchange, with the Exchange surviving the merger 
(``NASDAQ OMX Merger'').\4\ As a result of the NASDAQ OMX Merger, all 
of the Exchange's common stock would be owned by NASDAQ OMX; Phlx 
shareholders would receive cash consideration for their shares and 
would not retain any ownership interest in the Exchange.
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    \4\ The NASDAQ OMX Merger is defined as the merger of a wholly 
owned subsidiary of NASDAQ OMX with and into the Exchange, with the 
Exchange as the surviving corporation, in connection with the 
acquisition of the Exchange by NASDAQ OMX. See proposed By-Law 
Article I, Section 1-1(ii).
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    Thereafter, NASDAQ OMX would operate the Exchange as a wholly-owned 
subsidiary. The Exchange would continue to be registered as a national 
securities exchange, with separate Rules, membership rosters, and 
listings, distinct from the rules, membership rosters, and listings of 
The NASDAQ Stock Market LLC (the ``NASDAQ Exchange''). Additionally, 
the Exchange would continue to be a separate self-regulatory 
organization (``SRO'').
    The purpose of the proposed rule change is to amend the Exchange's 
Certificate of Incorporation, By-Laws, and Rules to reflect NASDAQ 
OMX's proposed ownership of the Exchange. Most of the amendments 
reflect the Exchange's new ownership structure and some are designed to 
conform Phlx's governance provisions to those that are currently 
applicable to the NASDAQ Exchange. These revised governance provisions 
collectively regulate the Exchange and its directors, officers, and 
employees in light of its ownership by NASDAQ OMX, and, among other 
things, are designed to preserve the Exchange's independent Board of 
Governors (``Board'').
a. Stock
    Specifically, Article SECOND of the Certificate of Incorporation 
would be updated to reflect the address of the Exchange's registered 
office. Article FOURTH would be amended to: (1) Reduce the amount of 
Common Stock that the Exchange has authority to issue to 100 shares; 
(2) eliminate the designation of Class A and Class B Common Stock;\5\ 
and (3) reduce the amount of Preferred Stock that the Exchange has 
authority to issue to 100 shares. Of the 100 shares of Preferred Stock 
that may be issued, there would continue to be one share that is 
designated as Series A Preferred Stock.\6\
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    \5\ See similar changes to current Exchange By-Law Article I, 
Section 1-1(d).
    \6\ The one authorized share of Series A Preferred stock is 
currently issued and outstanding, and held by the Trust pursuant to 
the Trust Agreement. See By-Law Article I, Section 1-1(ee) and 
proposed Section 1-1(mm). At this time, there are no other 
outstanding shares of Preferred Stock. The single share of Series A 
Preferred stock is held by the Trust for the purpose of electing 
those ``Designated Governors'' voted for by Phlx Members as provided 
in By-Law Articles I and III. Pursuant to the Trust Agreement, the 
Holder of the Series A Preferred Stock is required to elect the 
nominees for Governor elected by the Members. The NASDAQ OMX Merger 
would not result in a transfer of ownership of the Series A 
Preferred Stock.
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    All of the authorized shares of Common Stock shall be issued and 
outstanding, and shall initially be held by NASDAQ OMX. The Exchange 
would not issue additional Preferred Stock, other than the existing one 
share of Series A Preferred Stock, unless the resolution(s) providing 
for the issuance of such Preferred Stock has been filed with and 
approved by the Commission under Section 19 of the Act \7\ and the 
rules promulgated thereunder. Additionally, Common Stock and Preferred 
Stock (including the Series A Preferred Stock) may not be transferred 
or assigned, in whole or in part, to any entity, unless such transfer 
shall be filed with and approved by the Commission

[[Page 23294]]

under Section 19 of the Act \8\ and the rules promulgated 
thereunder.\9\
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    \7\ 15 U.S.C. 78s.
    \8\ Id.
    \9\ See proposed Certificate of Incorporation, Article FOURTH, 
and proposed By-Law Article XXIX, Section 29-4.
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    Additional changes to the Certificate of Incorporation are being 
proposed in connection with Common Stock dividend rights,\10\ voting 
rights,\11\ required notice by stockholders to the Exchange of Common 
Stock ownership in excess of certain thresholds,\12\ ownership 
concentration limits,\13\ and automatic conversion of Class A Common 
Stock.\14\ These changes are being made to delete language customarily 
applicable to non-public companies with several stockholders, which is 
no longer necessary because NASDAQ OMX would become the sole holder of 
Common Stock.
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    \10\ See proposed Article FOURTH, (c)(ii).
    \11\ See proposed Article FOURTH, (c)(iii).
    \12\ See Article FOURTH, (c)(iv).
    \13\ See Article FOURTH, (c)(v).
    \14\ See Article FOURTH, (c)(vi).
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b. Board
    With respect to the composition of the board of directors, the 
Exchange's Board is currently composed of the Chairman of the Board, 
who is the individual holding the office of the Chief Executive Officer 
of the Exchange, and 22 other Governors, consisting of two Governors 
who are Member Governors, one Governor who is a Philadelphia Board of 
Trade[reg] (``PBOT'') \15\ Governor, six Governors who are Stockholder 
Governors, 12 Governors who are Independent Governors, and one Governor 
who is the Vice-Chairman of the Board.\16\ The Exchange proposes to 
amend the current composition of the Board so that the number and 
qualifications of the Governors would be fixed from time to time by the 
Board in accordance with the By-Laws. The Board would be composed of a 
majority of Independent Governors.\17\ Specifically, the Board would 
include one Governor who is the Chief Executive Officer of the 
Exchange, one Governor who is the Vice-Chair of the Board,\18\ one PBOT 
Governor,\19\ one Member Governor,\20\ one Stockholder Governor,\21\ 
and a number of Designated Independent Governors.\22\ The Designated 
Governors (i.e., Designated Independent Governors, the Member Governor, 
and the PBOT Governor) \23\ are intended to comply with the requirement 
in Section 6(b)(3) of the Act,\24\ which requires that the rules of an 
exchange 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 issuers and investors and 
not be associated with a member of an exchange, broker, or dealer (the 
``fair representation requirement''). The Designated Independent 
Governors, together with the Member Governor and the PBOT Governor, 
would equal at least 20% of the total number of Governors. All 
remaining Governors would be Independent Governors. A Governor would be 
permitted to fill only one position on the Board.
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    \15\ The Philadelphia Board of Trade[reg] is Phlx's futures 
exchange subsidiary, and at this time, would continue to operate as 
such after the NASDAQ OMX merger.
    \16\ See By-Law Article IV, Section 4-1.
    \17\ See proposed Certificate of Incorporation Article SIXTH and 
By-Law Article IV, Section 4-1. ``Independent Governor'' would 
continue to be defined as a Governor who is a person affirmatively 
determined by the Board as having 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. See By-Law, Article I, Sections 1-1(f), 1-1(o) and 
(p).
    \18\ The Vice-Chair would continue to be an individual who, 
anytime within the prior three years, has been a Member primarily 
engaged in business on the Exchange's equity market or equity 
options market or who 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. See By-Law Article V, Section 5-3.
    \19\ A PBOT Governor would continue to be defined as a Governor 
who is a member of PBOT and is duly elected to fill the one vacancy 
on the Board allocated to the PBOT Governor. See By-Law Article I, 
Section 1-1(aa).
    \20\ A Member Governor would continue to be 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 the vacancy on the Board allocated to the 
Member Governor. See By-Law Article I, Section 1-1(u).
    \21\ A Stockholder Governor is defined as a Governor 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 vacancy on the Board 
allocated to the Stockholder Governor. See By-Law Article I, Section 
1-1(hh), and Article IV, Section 4-1 and proposed language in 
Certificate of Incorporation Article SIXTH.
    \22\ ``Designated Independent Governors'' would continue to be 
defined as those Independent Governors who are elected by the holder 
of the Series A Preferred Stock in accordance with Article SIXTH of 
the Certificate of Incorporation. See By-Law Article I, Section 1-
1(f).
    \23\ The term ``designated'' refers to a governor who is elected 
by the Holder of Series A Preferred Stock to reflect the vote of the 
Members. See also proposed changes to Article FOURTH of the 
Exchange's Certificate of Incorporation and By-Law Article I, 
Sections 1-1(e) and (f).
    \24\ 15 U.S.C. 78f(b)(3).
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    In terms of the election process, the Designated Governors would be 
elected by the vote of the holder of the Series A Preferred Stock 
(i.e., the ``Trust'') in accordance with the results of the vote of 
Members conducted under By-Law Article III. All other Governors (i.e., 
Independent Governors, Vice-Chair, Chief Executive Officer, and 
Shareholder Governor) would be elected by a plurality vote of the 
holder of Common Stock (i.e., NASDAQ OMX). All Governors would be 
elected for terms of one year as recommended by NASDAQ OMX to conform 
with its understanding of current corporate best practices by allowing 
frequent review of the performance of all Governors.\25\
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    \25\ Currently, Phlx Governors are divided into three classes. 
Each such class is constituted by election or appointment each year 
to serve for three years and until their successors are elected and 
qualify. Except for the Chairman and Vice-Chairman of the Board, 
Governors do not serve more than two consecutive full three-year 
terms. See By-Law Article IV, Section 4-3.
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    Article SIXTH would also be amended to provide that Governors, 
other than Designated Governors, may be removed with or without cause 
by vote of the holder of the Common Stock (i.e., NASDAQ OMX). This 
change would reflect the Exchange's proposed status as a wholly-owned 
subsidiary of NASDAQ OMX. Provisions governing the removal of 
Designated Governors would be simplified to make it clear that such 
removal may be made with or without cause but requires a vote of Member 
Organization Representatives under By-Law Article III. A new Article 
SEVENTH would provide that the stockholders (i.e., NASDAQ OMX) may act 
by unanimous written consent, again reflecting the Exchange's proposed 
status as a wholly-owned subsidiary.
c. By-Laws
    The proposed amendments to the By-Laws include changes to conform 
to changes proposed for the Certificate of Incorporation, such as the 
simplification of the Exchange's capital structure and restrictions on 
stock transfer and the changes to the composition of the Board 
described above. With regard to the composition of the Board 
immediately following a closing of the NASDAQ OMX Merger, amended By-
Law Article IV, Section 4-3 would provide that the directors of 
Pinnacle Merger Corporation, Inc. (the ``Merger Subsidiary''), the 
wholly-owned subsidiary of NASDAQ OMX that would be merged with and 
into the Exchange through the NASDAQ OMX Merger, would become the Board 
of Governors of the Exchange immediately after the effective time of 
the NASDAQ OMX Merger. The directors of the Merger Subsidiary would 
satisfy the compositional requirements of the

[[Page 23295]]

Exchange Board contained in the proposed By-Laws, as determined by 
NASDAQ OMX. The Designated Governors serving immediately after the 
effective time of the NASDAQ OMX Merger would consist of certain 
directors of the Merger Subsidiary who had been serving as Designated 
Governors of the Exchange immediately before the effective time of the 
NASDAQ OMX Merger, as selected by NASDAQ OMX.
    Article III, Section 3-3(a), Removal of Designated Governors, 
currently provides that Designated Governors may be removed only for 
cause, unless a majority of the Board recommends that one or more 
Designated Governors be removed in accordance with Section 4-4 of the 
By-Laws, in which case such Designated Governor(s) may be removed 
without cause. In either case, removal of the Designated Governor 
requires a vote by Member Organization Representatives at an annual or 
special meeting. As proposed to be amended, Section 3-3 would provide 
that Designated Governors may be removed, with or without cause, only 
by vote of Member Organization Representatives at an annual or special 
meeting.\26\
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    \26\ A special meeting could be called by Members or the Board. 
See By-Law Article III, Section 3-2(b).
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    Article IV, Section 4-4, Duties and Powers, provides that in the 
event of the refusal or failure of any Governor to discharge his duties 
or for any reason deemed sufficient by the Board, the Board may, by the 
affirmative vote of a majority of Governors then in office, recommend 
to the Stockholders (and in the case of a Designated Governor, the 
Members) that such Governor be removed and call a special meeting of 
the Stockholders \27\ (and, in the case of a Designated Governor, a 
special meeting of the Members and Member Organizations and 
subsequently a special meeting of the holder of the Series A Preferred 
Stock, who shall be required to vote in accordance with Article SIXTH 
of the Certificate of Incorporation and the Trust Agreement) for the 
purpose of voting on such removal. The Exchange believes that the 
process set forth in Article IV, Section 4-4, remains an appropriate 
and suitable process for the Board to address the refusal or failure of 
a Governor elected by the Members to discharge his duties. Thus, in all 
cases, authority to remove Designated Governors would rest with the 
Members pursuant to Section 3-3, but the Board could recommend removal 
and call a special meeting under Section 4-4.
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    \27\ This action may also be taken without a meeting. See 
proposed By-Law Article XXVIII, Section 28-13 (providing for 
Stockholder action without a meeting).
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    Article IV, Section 4-17, Interpretation of By-Laws, would be 
amended to clarify that the Board shall determine whether an 
interpretation of the By-Laws and the Rules must be filed with the 
Commission as a proposed rule change, and if so, then such change would 
not become effective until filed with, or filed with and approved by, 
the Commission, as required under Section 19 of the Act \28\ and the 
rules promulgated thereunder.
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    \28\ 15 U.S.C. 78s.
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    Article IV, Section 4-21, Annual Financial Report, would be amended 
to reflect that the Board of Governors would no longer send out annual 
financial reports as described in Section 4-21. However, annual 
financial reports of the Exchange would continue to be available at the 
Exchange and would also be reflected in the public consolidated 
financial statements of NASDAQ OMX.
    Article V of the By-Laws would be amended to set forth in detail 
the powers and duties relating to the Chair, Vice-Chair, and officers 
of the Exchange. Specifically, the Exchange proposes to insert language 
in By-Law Article V, Section 5-1, Board's Appointive Powers, to state 
that the Board would appoint the officers of the Exchange as provided 
in the By-Laws and shall fix their duties, responsibilities, and terms 
of employment. Additionally, language would be added to Section 5-2, 
Chair of the Board of Governors, to set forth the powers of the Chair 
of the Board and to establish that the Board would select its Chair 
from among the members of the Board who are Independent Governors. 
Proposed Sections 5-4, Chief Executive Officer, and 5-5, President, set 
forth the duties and powers of these officers of the Exchange.\29\
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    \29\ These provisions are consistent with current NASDAQ OMX By-
Law Article VII, and NASDAQ Exchange By-Law Article IV.
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    Article VI, Equity Stock Compensation, Section 6-1, Stock Incentive 
and Option Plans, would be deleted as this provision is no longer 
applicable due to the fact that NASDAQ OMX would be the sole owner of 
the Exchange's Common Stock and any potential equity stock compensation 
is likely to consist of NASDAQ OMX stock rather than Phlx stock.
    Additionally, By-Law Article IX, Trustees of Stock Exchange Fund, 
Sections 9-1 through 9-6 would be deleted, as these provisions are no 
longer deemed necessary after the acquisition of the Exchange by NASDAQ 
OMX.\30\ The change reflects a simplification of the Exchange's 
financial management, under which the Exchange's assets would be 
subject to the oversight of the Board rather than separate trustees and 
also subject to public company financial controls established by NASDAQ 
OMX.\31\
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    \30\ The purpose of the Stock Exchange Fund was to appoint 
trustees to manage the investment of certain funds of the Exchange 
and collect interest, dividends and income from the funds for the 
Exchange.
    \31\ The applicable references to the Stock Exchange Fund in 
Article IV, Section 4-4, Duties and Powers, Removal of governors or 
trustees of gratuity fund and stock exchange for cause, would also 
be deleted and this section would be updated to reflect that there 
is no longer a gratuity fund.
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d. Standing Committees
    Generally, the Standing Committees of the Board would remain the 
same, except as discussed below. By-Law Article X, Standing Committees, 
would also be updated to reflect the elimination of the Automation 
Committee and Marketing Committee, as these committees are deemed no 
longer necessary at this time because automation and marketing would be 
guided and handled at the parent company level. Additionally, the 
responsibilities of the Audit Committee would be updated to conform 
with similar responsibilities and processes of the Audit Committees of 
NASDAQ OMX and the NASDAQ Exchange.\32\ The composition of the 
Executive Committee and the Finance Committee would be amended to 
reflect the proposed changes to the composition of the Board.
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    \32\ See NASDAQ OMX Audit Committee Charter approved April 18, 
2007 and NASDAQ Exchange By-Law Article III.
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    Several Exchange committees that currently review proposed rule 
changes may review such proposals before the proposals are presented to 
either the Executive Committee \33\ or the Board for approval for 
filing with the Commission.\34\ These committees on

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which Exchange members serve would continue to perform this function 
after the NASDAQ OMX merger. For example, the Business Conduct 
Committee (``BCC'') may review proposed changes to the disciplinary 
Rules that are set forth in Exchange Rule 960 before these Rules are 
presented to the Executive Committee or the Board. The BCC currently 
consists (and will continue to consist) of nine members as follows: 
three Independent Governors; one Member or person associated with a 
Member Organization who conducts business on XLE; one Member who 
conducts options business at the Exchange; and four persons who are 
Members or persons associated with a Member Organization.\35\
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    \33\ The Executive Committee currently consists of nine 
Governors; the Chairman of the Board; the Vice-Chairman of the 
Board; the Chairman of the Finance Committee; the Chairmen of two 
floor committees; two Stockholder Governors; and two Independent 
Governors. See By-Law Article X, Section 10-14. As proposed herein, 
the Executive Committee would be amended so that it would consist of 
the Chair of the Board, the Vice-Chair of the Board, the Stockholder 
Governor, a number of designated Governors equal to at least 20% of 
the total number of Governors on the Executive Committee, and such 
other Governors as the Board may appoint. See proposed By-Law 
Article X, Section 10-14.
    \34\ Members using XLE (the Exchange's equity trading system) 
are represented on the Exchange's Board through the exercise of 
their voting rights for members of the Board. Currently, there is no 
designated committee that reviews proposed rule changes covering 
equity Rules. The Board or Executive Committee performs this 
function.
    \35\ See By-Law Article X, Section 10-11.
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    Furthermore, the Options Committee makes or recommends for adoption 
such Rules as it deems necessary for the convenient and orderly 
transaction of business upon the equity and index options trading 
floor, as well as makes and enforces Rules and regulations relating to 
order, decorum, health, safety and welfare on the equity and index 
options trading floor and the immediately adjacent premises of the 
Exchange. Fifty percent of the Members of the Options Committee are 
permit holders or associated with a Member Organization.\36\ Thus, 
Member representation on Exchange committees would continue.
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    \36\ See By-Law Article X, Section 10-20.
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    Additionally, By-Law Article X, Section 10-15, Finance Committee, 
would be amended such that the Chair of the Finance Committee would be 
the Chair of the Board and would no longer be either the Vice-Chair, 
Stockholder Governor or Member Governor. The Exchange also proposes to 
amend the description of the composition of the Finance Committee 
members to allow any Member or persons associated with a Member 
Organization, who conducts business on XLE to be a member of the 
Committee. Currently, the language states, in part, that the Finance 
Committee shall include two Members or persons associated with a Member 
Organization, who may be Governors, one of whom conducts business 
primarily on XLE or on the equity options floor. Although this proposed 
change is not directly related to the NASDAQ OMX Merger, the Exchange 
proposes to delete the word ``primarily'' in order to allow a greater 
pool of candidates to be eligible to serve on the Finance 
Committee.\37\
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    \37\ This proposed change is consistent with a recent By-Law 
change to Section 10-11, Business Conduct Committee, relating to the 
composition of the Business Conduct Committee. In that proposal, the 
Exchange expanded the type of business that may be conducted to 
qualify as a BCC member. See Securities Exchange Act Release No. 
57023 (December 20, 2007), 72 FR 74398 (December 31, 2007) (SR-Phlx-
2007-83).
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    The purpose of deleting the supplementary material in Section 10-15 
is to reflect the updated responsibilities of the Finance 
Committee.\38\ The Board would establish capital expenditure policies, 
which may include delegation to Board committees and/or officers, but 
would no longer reflect these policies in the By-Laws. This reflects a 
more flexible approach, consistent with NASDAQ OMX's processes and the 
functions of a public company parent.
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    \38\ Currently, the supplementary material relates to directives 
that are applicable to the Finance Committee in the exercise of its 
duties, powers and authority under the By-Laws. For example, the 
supplementary material states that the Finance Committee may 
authorize certain expenditures of any budgeted line items; may 
delegate to the staff of the Exchange so much of its authority to 
make expenditures as it deems appropriate; and shall perform its 
functions and act with the same powers and limitations for the 
Exchange and all subsidiaries of the Exchange. See By-Law Article X, 
Section 10-15, Supplementary Material.
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    Also, in By-Law Article X, Section 10-19, Nominating, Elections and 
Governance Committee, the Exchange proposes to delete the term limit 
applicable to this Committee and delete the prohibition on Committee 
members standing for re-election to the Board. These changes are 
designed to increase the pool of candidates eligible to serve on the 
Committee and the Board. Moreover, the deletion of these restrictions 
is also supported by the fact that all Board members, including those 
serving on the Committee, would serve for one-year terms and would 
therefore have their qualifications for continued Board service under 
more frequent review.
    In addition, the Nominating, Elections and Governance Committee 
would no longer select all Chairs of the Standing Committees in 
accordance with Article X. The Board would now appoint a person to fill 
any vacancy in a Standing Committee, including Chairs, except for the 
Chair of the Executive Committee, the Chair of the Nominating, 
Elections and Governance Committee and the Chair of the Finance 
Committee.\39\ This change reflects a general philosophy that the full 
Board should have control over the composition of Standing Committees, 
including the selection of their Chairs and is consistent with how 
NASDAQ OMX currently operates.\40\
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    \39\ Pursuant to the By-Laws, the Chair of the Board is the 
Chair of the Executive Committee and the Finance Committee and the 
Chair of the Nominating, Elections and Governance Committee is 
selected from among the members of such Committee who are 
Independent Governors. See By-Law Article X, Sections 10-14(a), 10-
15 and 10-19(a).
    \40\ See NASDAQ OMX By-Law Article IV, Section 4.13.
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    Additionally, in By-Law Article X, Section 10-21, the Exchange 
proposes to clarify the composition of the Quality of Markets Committee 
by specifically stating that the members of this Committee would 
include at least as many Independent members as it does the ``combined 
number'' of Stockholder-chosen members \41\ and members who are Members 
of the Exchange.\42\ The Exchange believes that adding the language 
``combined number'' should clarify that the number of Stockholder-
chosen Committee members \43\ are added to the number of Members 
serving on the Committee \44\ and that total is then compared to the 
number of ``Independent'' Committee members (not to be confused with 
``Independent Governors,'' which also rely on the definition of 
``Independent'' in By-Law Article I, Section 1-1(o)).
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    \41\ See By-Law Article I, Section 1-1(gg).
    \42\ See By-Law Article I, Section 1-1(t).
    \43\ NASDAQ OMX, as Stockholder, would select the Stockholder 
member(s) of this Committee, subject to Board approval pursuant to 
By-Law Article X, Section 10-1(b).
    \44\ The Board would select the Member(s) serving on the 
Committee pursuant to By-Law Article X, Section 10-1(b).
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    In addition, the Exchange proposes to adopt for the Quality of 
Markets Committee a ``fair representation requirement'' consistent with 
Section 6(b)(3) of the Act, \45\ which requires that the rules of an 
exchange assure a fair representation of its members in the selection 
of its directors and administration of its affairs. This language is 
intended to ensure fair Member representation on the Quality of Markets 
Committee.\46\
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    \45\ 15 U.S.C. 78f(b)(3).
    \46\ This provision is similar to the NASDAQ Exchange's Quality 
of Markets Committee. See NASDAQ Exchange By-Law Article III, 
Section 6.
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    By-Law Article XI, Section 11-1(b) would be amended to delete 
references to a ``special committee of the Board of Governors'' that 
hears appeals from determinations of the Nominating, Elections and 
Governance Committee regarding eligibility for election to the Board. 
The special committee had been composed of Governors not then standing 
for re-election. However, because the proposed amendments to Section 4-
3 eliminate the ``staggering'' of the Board, requiring all Governors to 
be elected annually, it would not be possible to form such a special

[[Page 23297]]

committee. Now that the Exchange proposes to reduce the size of its 
Board, the Exchange believes that at this time, it would be more 
practical for the full Board to hear an appeal pursuant to Section 11-
1(b) because all Governors would stand for re-election annually.
    In By-Law Sections 13-5, Liability of Officers, Directors and 
Substantial Stockholders, 13-7, Violation of Terms of Registration, 17-
4, Time for Settlement of Insolvent Member or Participant, Extension, 
and 18-3, Responsibility of Member or Participant for Acts of His 
Organization, references to receiving an affirmative vote of either 14 
or 15 Governors (which used to represent a supermajority) would be 
changed to require an affirmative vote of a majority of all Governors. 
This change is necessary as the number of Board members may be reduced 
after the NASDAQ OMX Merger and therefore a vote of 14 or 15 Governors 
may no longer be possible.
    Article XXII, Amending the By-Laws, would be amended to state 
affirmatively that By-Law amendments must be filed with, and/or 
approved by, the Commission as required under Section 19 of the Act 
\47\ and that the holders of a majority of the shares of Common Stock 
then issued and outstanding must affirmatively vote for By-Law 
amendments.
---------------------------------------------------------------------------

    \47\ 15 U.S.C. 78s.
---------------------------------------------------------------------------

    Article XXVIII, Section 28-3, Nomination of Chairman and Vice-
Chairman of the Board of Governors; Independent Nominations by 
Stockholders; Election of Nominees for Stockholder and Independent 
Governors, currently provides for a nomination process in connection 
with nominating and electing the above-referenced individuals. The 
Exchange proposes to amend Section 28-3 to reflect that the Holder of 
Common Stock would present to the Nominating, Elections and Governance 
Committee its candidate recommendations for Vice-Chair, Shareholder 
Governor and Independent Governors for placement on the ballot for 
election by the Holder of Common Stock at the annual meeting of 
Stockholders. These nominees would be placed on the ballot and elected 
by the Holder of Common Stock. Additionally, the Board would now 
appoint the Chair from among the members of the Board who are 
Independent Governors.\48\ This approach is consistent with the NASDAQ 
Exchange's processes for nomination of non-Member Representative 
Directors by a nominating committee that may seek the input and 
recommendations of NASDAQ OMX as the owner of the NASDAQ Exchange.\49\
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    \48\ See proposed By-Law Article V, Section 5-2.
    \49\ See NASDAQ Exchange By-Law Article III, Section 6.
---------------------------------------------------------------------------

    Article XXVIII, proposed Section 28-13, Action Without Meeting, 
sets forth provisions relating to action that may be taken without a 
meeting and the accompanying requirements relating to taking such 
action. This provision sets forth specifically that any action required 
or permitted to be taken at any annual or special meeting of 
Stockholders may be taken by Stockholders without a meeting as set 
forth in detail in Section 28-13, unless otherwise specified in the 
Certificate of Incorporation of the Exchange. This language should 
assist in providing greater flexibility in connection with taking any 
action required or permitted to be taken at any annual or special 
meeting of Stockholders and is consistent with proposed Article SEVENTH 
of the Exchange's Certificate of Incorporation.
    Article XXIX, Capital Stock, would be updated. The proposed changes 
to Sections 29-1 through 29-7 are similar to NASDAQ OMX By-Law Article 
IX, Capital Stock, Sections 9.1 through 9.7, reflect standard 
provisions for a Delaware stock corporation and also reflect the 
contemplated ownership of all Common Stock by NASDAQ OMX. Existing 
provisions in Article XXIX that contemplated a possible public offering 
of the Exchange's stock would be deleted and replaced with restrictions 
on stock transfer comparable to the restrictions included in the 
Certificate of Incorporation and discussed above. Additionally, 
proposed Section 29-8, Dividends, is similar to Section 15 of the LLC 
Agreement of the NASDAQ Exchange, and prohibits the Exchange from using 
Regulatory Funds to pay dividends.\50\
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    \50\ ``Regulatory Funds'' are defined as fees, fines, or 
penalties derived from the regulatory operations of the Exchange. 
However, ``Regulatory Funds'' shall not be construed to include 
revenues derived from listing fees, market data revenues, 
transaction revenues, or any other aspect of the commercial 
operations of the Exchange even if a portion of such revenues are 
used to pay costs associated with the regulatory operations of the 
Exchange. See proposed By-Law Article I, Section 1-1(kk).
---------------------------------------------------------------------------

    Additionally, further changes to the Certificate of Incorporation 
and By-Laws would be made to correct typographical errors and to update 
the language to more accurately reflect current practices. For example, 
the language relating to how the Exchange's Weekly Bulletin is 
distributed would be updated to not restrict its distribution to mail, 
but rather to permit distribution by e-mail and posting on the 
Exchange's Web site.\51\ As a second example, references to 
``Chairman'' would be replaced with ``Chair.'' Additionally, references 
to the ``director'' of either the Membership Services or Examinations 
Departments in Sections 17-1, Suspension for Insolvency on Declaration, 
and 17-3, Investigation of Insolvency, would be deleted in favor of 
more general references to the departments. Therefore, notices would 
still be required to be sent to these departments, but not necessarily 
to the director. This change should allow more flexibility in 
connection with sending notices to these departments.
---------------------------------------------------------------------------

    \51\ See, e.g., By-Law Article XII, Section 12-5(d).
---------------------------------------------------------------------------

e. Rules
    The Exchange also proposes to amend the following current Exchange 
Rules: (1) Rule 1, Definitions; (2) Rule 98, Emergency Committee; (3) 
Rule 164, Trading Halts; and (4) Rule 972, Continuation of Status After 
the Merger. More specifically, the Exchange proposes to update Rule 1, 
Definitions, to include a definition of the NASDAQ OMX Merger, which 
will apply to Rule 972.
    Rule 98, Emergency Committee, is proposed to be amended to reflect 
that the Board shall establish the Emergency Committee and determine 
its composition, which not only revises the members that comprise the 
Committee, but allows for greater flexibility in appointing members to 
this Committee. Currently, the Emergency Committee consists of the 
following: the Chairman of the Board, the On-Floor Vice-Chairman of the 
Exchange, the Off-Floor Vice-Chairman of the Exchange (this position, 
however, no longer exists and reference to this position was 
inadvertently not deleted previously from Rule 98), and the Chairmen of 
the Options and Foreign Currency Options Committees.
    Rule 164, Trading Halts, is proposed to be amended to provide that 
the officers of the Exchange designated by the Board shall have the 
power to suspend trading in any and all securities traded on XLE 
whenever in their opinion such suspension would be in the public 
interest. Currently, only the Chairman and Chief Executive Officer or 
his designee has the authority to suspend trading pursuant to Rule 164. 
Under this proposal, there would no longer be one position entitled 
``Chairman and Chief Executive Officer.'' Accordingly, the proposed 
change allows for greater flexibility in designating individuals 
responsible for declaring any trading halts and updates the rule to 
reflect the proposed revisions

[[Page 23298]]

relating to the officers of the Exchange.\52\
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    \52\ See proposed By-Law Article V, Sections 5-1 through 5-5.
---------------------------------------------------------------------------

    Proposed Rule 972, Continuation of Status After the NASDAQ OMX 
Merger, is being amended to reflect that current members, \53\ inactive 
nominees, member organizations, foreign currency options participants, 
foreign currency options participant organizations, as well as approved 
lessors of foreign currency options participations holding such status 
prior to the NASDAQ OMX Merger would continue to hold such status 
following the NASDAQ OMX Merger. This provision was adopted in 
connection with and currently refers to the Exchange's 2004 
demutualization.\54\ It is being amended to refer specifically to the 
proposed NASDAQ OMX merger and to serve the same purpose as the 
original provision, which is to make clear that the merger does not 
affect membership status generally.
---------------------------------------------------------------------------

    \53\ The term ``member,'' defined in Rule 1(n), is not 
capitalized, unlike the Exchange's By-Laws.
    \54\ See Securities Exchange Act Release No. 49098 (January 16, 
2004), 69 FR 3974 (January 27, 2004) (SR-Phlx-2003-73).
---------------------------------------------------------------------------

    Additionally, the Exchange proposes to adopt two new Rules that 
would reflect its status as a wholly-owned subsidiary of NASDAQ OMX 
upon the effectiveness of the NASDAQ OMX Merger. The purpose of the 
Rules is to guard against any possibility that the Exchange may 
exercise, or forebear to exercise, regulatory authority with respect to 
an affiliated entity in a manner that is influenced by commercial 
considerations, to provide an opportunity for Commission review of 
certain proposed affiliations, and to ensure that certain affiliated 
members do not receive advantaged access to information in comparison 
with unaffiliated members. The Exchange believes that the proposed 
Rules would provide added assurance of regulatory integrity without 
subjecting the Exchange and its affiliates to unwarranted restrictions 
on their commercial activities.
    First, the Exchange proposes to adopt Rule 990, which is comparable 
to NASDAQ Exchange Rule 4370. The rule provides that if a security 
issued by NASDAQ OMX or any of its affiliates is listed on the 
Exchange, the Exchange will apply special procedures to the regulation 
of that listing, including reporting to the Commission and conducting 
an annual independent audit of the security's compliance with Exchange 
listing standards.
    Second, proposed Exchange Rule 985(a) would limit ownership of 
NASDAQ OMX's voting securities by members of the Exchange and their 
associated persons (i.e., their registered representatives). The Rule 
is comparable to Rule 2130 of the NASDAQ Exchange, and provides that no 
member or associated person of a member shall be the beneficial owner 
of greater than 20% of the then-outstanding voting securities of NASDAQ 
OMX. ``Beneficial ownership'' is defined with reference to NASDAQ OMX's 
certificate of incorporation, which in turn provides that a person 
shall be deemed the ``beneficial owner'' of, shall be deemed to have 
``beneficial ownership'' of and shall be deemed to ``beneficially own'' 
any securities: (i) Which such person or any of such person's 
affiliates is deemed to beneficially own, directly or indirectly, 
within the meaning of Rule 13d-3 under the Act; \55\ (ii) subject to 
certain narrow exceptions described in the certificate of 
incorporation, which such person or any of such person's affiliates has 
the right to acquire or to vote pursuant to any agreement, arrangement, 
or understanding or otherwise; or (iii) subject to certain narrow 
exceptions described in the certificate of incorporation, which are 
beneficially owned, directly or indirectly, by any other person and 
with respect to which such person or any of such person's affiliates 
has any agreement, arrangement or understanding for the purpose of 
acquiring, holding, voting or disposing of such securities.
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    \55\ Rule 13d-3 under the Act, 17 CFR 240.13d-3, in turn 
provides that a beneficial owner of a security includes any person 
who, directly or indirectly, through any contract, arrangement, 
understanding, relationship, or otherwise has or shares voting power 
or investment power.
---------------------------------------------------------------------------

    Third, proposed Exchange Rule 985(b) would regulate the affiliation 
between the Exchange and its affiliates, on the one hand, and Exchange 
members, on the other hand, in a manner comparable to Rule 2140 of the 
NASDAQ Exchange. In general, the proposed rule provides that the 
Exchange must file a proposed rule change with the Commission before 
the Exchange or an entity with which it is affiliated directly or 
indirectly acquires or maintains an ownership interest in, or engages 
in a business venture with, an Exchange member or an affiliate of an 
Exchange member.\56\ The rule defines ``affiliate'' with reference to 
Rule 12b-2 under the Act,\57\ which provides that if one person 
controls, is controlled by, or is under common control of another 
person, the persons are affiliates.
---------------------------------------------------------------------------

    \56\ As used in the rule, the term ``affiliate'' includes 
natural persons, but the term ``entity,'' when used to describe an 
affiliate, excludes natural persons.
    \57\ 17 CFR 240.12b-2.
---------------------------------------------------------------------------

    The proposed rule would make it clear that in a case where the 
Exchange or an affiliate of the Exchange proposes an acquisition of, or 
a merger or business venture with, an Exchange member, a proposed rule 
change would be required. In order to make it clear that the obligation 
to avoid affiliations that have not been filed is imposed by the rule 
both on the Exchange and its members, moreover, the rule provides that 
an Exchange member shall not be or become an affiliate of the Exchange, 
or an affiliate of any entity affiliated with the Exchange, without a 
proposed rule change.
    The term ``business venture,'' as used in the rule, is defined as 
an arrangement under which the Exchange or an entity with which it is 
affiliated, on the one hand, and an Exchange member or affiliate 
thereof, on the other hand, engage in joint activities with an 
expectation of shared profit and a risk of shared loss from common 
entrepreneurial efforts. Thus, the term does not include, and the 
proposed rule does not regulate, contracts with members or their 
affiliates to provide goods, products, or services for consideration, 
including, but not limited to, asset or stock purchase agreements that 
do not result in ongoing ties with a member or its affiliates,\58\ 
credit or debt facilities, licenses of intellectual property, contracts 
for investment banking, financial advisory, or consulting services,\59\ 
or the provision of transaction services or data to a broker-dealer 
member or products or services to a listed company that is or that owns 
a member broker-dealer.
---------------------------------------------------------------------------

    \58\ For example, in the case of an acquisition of a non-
Membersubsidiary of a Member in a transaction that did not result in 
an ongoing affiliation with the Member, the transaction would not be 
regulated by the rule.
    \59\ In some cases, such contracts may involve sharing of 
confidential information with a Member in circumstances where a 
Member acts as a fiduciary for Phlx or one of its affiliates. The 
Member would be required to take measures to prevent such 
information from being misused, and a failure to do so may 
constitute a violation of Rules, including, depending on the 
circumstances, Exchange Rules 707, 708, and 1020.
---------------------------------------------------------------------------

    The rule limits possible expansive interpretations of the term 
``affiliate'' by stipulating that one entity is not deemed to be an 
affiliate of another entity solely by virtue of having a common 
director. For example, if one of the Governors of the Exchange is also 
a director of an Exchange member, that member would not be deemed to be 
an affiliate of the Exchange solely because of the common director. In 
addition, the rule should not be construed to regulate in any manner

[[Page 23299]]

the selection of Governors or standing committee members of the 
Exchange, NASDAQ OMX, the NASDAQ Exchange, or their affiliates, 
provided such selections are conducted in accordance with applicable 
provisions of governing corporate documents.
    In circumstances where a Commission filing is required, the rule 
allows the Exchange to file, in appropriate cases, a proposed rule 
change on an immediately effective basis under Section 19(b)(3)(A) of 
the Act \60\ and Rule 19b-4(f) thereunder.\61\ For example, in cases 
where a proposed affiliation or business venture would not result in 
the establishment of a ``facility'' of the Exchange within the meaning 
of Section 3 of the Act,\62\ a filing to establish Rules to govern the 
operation of the affiliate or business venture would not be required or 
appropriate. Rather, in such circumstances, the Exchange would expect 
to engage in informal consultation with the Commission's Division of 
Trading and Markets and/or members of the Commission, and would then 
submit a filing to amend the rule itself, to establish that the 
affiliation or business venture could exist as an exception to the 
rule. Depending on the circumstances, such a filing might be submitted 
on an immediately effective basis.
---------------------------------------------------------------------------

    \60\ 15 U.S.C. 78s(b)(3)(A).
    \61\ 17 CFR 240.19b-4(f).
    \62\ 15 U.S.C. 78c.
---------------------------------------------------------------------------

    There are also several important exceptions to the general filing 
requirement of the rule. First, the rule would not require a filing for 
transactions that result in an Exchange member acquiring or holding an 
interest in NASDAQ OMX that is consistent with Rule 985(a) (discussed 
above). Second, no filing would be required for the Exchange or an 
entity affiliated with the Exchange acquiring or maintaining an 
ownership interest in, or engaging in a business venture with, an 
affiliate of an Exchange member if there are information barriers 
between the member and the Exchange and its facilities, such that the 
member: (i) Would not be provided an informational advantage concerning 
the operation of the Exchange and its facilities, and would not be 
provided changes or improvements to the trading system that are not 
available to the industry generally or other Exchange members; (ii) 
would not have knowledge in advance of other members of proposed 
changes, modifications, or improvements to the operations or trading 
systems of the Exchange and its facilities, including advance knowledge 
of Exchange filings pursuant to Section 19(b) of the Act; \63\ (iii) 
would be notified of any proposed changes, modifications, or 
improvements to the operations or trading systems of the Exchange and 
its facilities in the same manner as other Exchange members are 
notified; and (iv) would not share employees, office space, or 
databases with the Exchange or its facilities, NASDAQ OMX, or any 
entity that is controlled by NASDAQ OMX.\64\ The Exchange's Board must 
certify, on an annual basis, to the Director of the Commission's 
Division of Trading and Markets that the Exchange has taken all 
reasonable steps to implement the foregoing requirements with respect 
to any affiliate to which they apply and is in compliance therewith.
---------------------------------------------------------------------------

    \63\ 15 U.S.C. 78s(b).
    \64\ Phlx would not construe these limitations to bar an 
employee of an affiliated member from serving on a Phlx standing 
committee, since: (i) Such committee members would be required to 
sign confidentiality agreements with regard to information received 
through committee service; and (ii) the committee member employed by 
the affiliate would receive information provided through committee 
service at the same time as other committee members.
---------------------------------------------------------------------------

    This exception is aimed at circumstances in which the Exchange or 
an affiliated entity acquires, or enters into a business venture with, 
an affiliate of an Exchange member, and the Exchange erects information 
barriers between the member and the Exchange and its facilities. Thus, 
the Exchange ensures that the member does not receive any advantage as 
a result of its affiliation.
    In connection with the adoption of this rule, the Exchange hereby 
requests Commission approval under the rule for the affiliation that 
would result by virtue of the merger between the Exchange and the two 
broker-dealer subsidiaries of the NASDAQ Exchange: Nasdaq Execution 
Services, LLC (``NES'') and NASDAQ Options Services, LLC (``NOS''). The 
acquisition of the entities that are now NES and NOS by NASDAQ OMX was 
approved by the Commission in 2004 and 2005.\65\ The rules under which 
NES currently routes orders to other market centers were approved by 
the Commission in 2006 and subsequently amended on several 
occasions.\66\ Notably, NASDAQ Exchange Rule 4758(b) establishes the 
parameters for operation of NES as follows: (1) All routing of equities 
by the NASDAQ Exchange is performed by NES, which, in turn, routes 
orders to other market centers as directed by the NASDAQ Exchange; (2) 
NES would not engage in any business other than: (a) As a outbound 
router for the NASDAQ Exchange, and (b) any other activities it may 
engage in as approved by the Commission; (3) NES would operate as a 
facility, as defined in Section 3(a)(2) of the Act,\67\ of the NASDAQ 
Exchange; (4) for purposes of Rule 17d-1 under the Act,\68\ the 
designated examining authority of NES would be a self-regulatory 
organization unaffiliated with the NASDAQ Exchange or any of its 
affiliates; (5) the NASDAQ Exchange shall be responsible for filing 
with the Commission rule changes related to the operation of, and fees 
for services provided by, NES, and NES shall be subject to exchange 
non-discrimination requirements; (6) the books, records, premises, 
officers, agents, directors and employees of NES, as a facility of the 
NASDAQ Exchange, shall be deemed to be the books, records, premises, 
officers, agents, directors and employees of the NASDAQ Exchange for 
purposes of, and subject to oversight pursuant to, the Act, and the 
books and records of NES, as a facility of the NASDAQ Exchange, shall 
be subject at all times to inspection and copying by the Commission; 
and (7) use of NES is optional.
---------------------------------------------------------------------------

    \65\ See Securities Exchange Act Release Nos. 50311 (September 
3, 2004), 69 FR 54818 (September 10, 2004) (Order Granting 
Application for a Temporary Conditional Exemption Pursuant To 
Section 36(a) of the Exchange Act by the National Association of 
Securities Dealers, Inc. Relating to the Acquisition of an ECN by 
The Nasdaq Stock Market, Inc.) and 52902 (December 7, 2005), 70 FR 
73810 (December 13, 2005) (SR-NASD-2005-128) (Order Approving a 
Proposed Rule Change To Establish Rules Governing the Operation of 
the INET System).
    \66\ See Securities Exchange Act Release Nos. 56867 (November 
29, 2007), 72 FR 69263 (December 7, 2007) (SR-NASDAQ-2007-065); 
56708 (October 26, 2007), 72 FR 61925 (November 1, 2007) (SR-NASDAQ-
2007-078); 55335 (February 23, 2007), 72 FR 9369 (March 1, 2007) 
(SR-NASDAQ-07-005); 54613 (October 17, 2006), 71 FR 62325 (October 
24, 2006) (SR-NASDAQ-2006-043); 54271 (August 3, 2006), 71 FR 45876 
(August 10, 2006) (SR-NASDAQ-2006-027); and 54155 (July 14, 2006), 
71 FR 41291 (July 20, 2006) (SR-NASDAQ-2006-001).
    \67\ 15 U.S.C. 78c(a)(2).
    \68\ 17 CFR 240.17d-1.
---------------------------------------------------------------------------

    Currently, routing by NES on behalf of the NASDAQ Exchange takes 
two forms: (i) Orders that access any liquidity on the NASDAQ Exchange 
book that has a price equal to or superior to the prices available on 
other ``automated market centers'' and thereafter route to seek the 
best available price; and (ii) routing of ``directed orders'' to 
automated market centers other than the NASDAQ Exchange on an 
``immediate-or-cancel'' basis. Such directed orders may be designated 
as ``intermarket sweep orders,'' which may be executed by the receiving 
venue based on the representation of the market participant that it has 
routed to all superior

[[Page 23300]]

protected quotations, or not so designated, in which case the orders 
will execute only if their execution would not result in a trade-
through.
    NOS serves as the outbound router for the Nasdaq Options Market 
(``NOM''), which commenced operations on March 31, 2008. Under Rule 
Chapter VI, Section 11 for NOM,\69\ (1) NOM will route orders in 
options via NOS, which serves as the sole ``Routing Facility'' of NOM; 
(2) the sole function of the Routing Facility will be to route orders 
in options listed and open for trading on NOM to away markets pursuant 
to NOM rules, solely on behalf of NOM; (3) NOS is a member of an 
unaffiliated SRO which is the designated examining authority for the 
broker-dealer; (4) the Routing Facility is subject to regulation as a 
facility of the NASDAQ Exchange, including the requirement to file 
proposed rule changes under Section 19 of the Act; \70\ (5) NOM shall 
establish and maintain procedures and internal controls reasonably 
designed to adequately restrict the flow of confidential and 
proprietary information between the NASDAQ Exchange and its facilities 
(including the Routing Facility), and any other entity; and (6) the 
books, records, premises, officers, directors, agents, and employees of 
the Routing Facility, as a facility of the NASDAQ Exchange, shall be 
deemed to be the books, records, premises, officers, directors, agents, 
and employees of the NASDAQ Exchange for purposes of and subject to 
oversight pursuant to the Act, and the books and records of the Routing 
Facility, as a facility of the Exchange, shall be subject at all times 
to inspection and copying by the NASDAQ Exchange and the Commission.
---------------------------------------------------------------------------

    \69\ See Securities Exchange Act Release No. 57478 (March 12, 
2008), 73 FR 14521 (March 18, 2008) (SR-NASDAQ-2007-004 and -080) 
(the ``NOM Approval Order'').
    \70\ 15 U.S.C. 78s.
---------------------------------------------------------------------------

    Unlike NES, NOS does not have a ``directed order'' for options that 
are trading on NOM; rather, all routable orders for options that are 
trading on NOM check the NOM book prior to routing. However, NOS also 
routes orders in options that are not trading on NOM. When routing 
orders in options that are not listed and open for trading on NOM, NOS 
will not be regulated as a facility of the NASDAQ Exchange but rather 
as a broker-dealer regulated by its designated examining authority. 
However, as provided by Chapter IV, Section 5 of the NOM rules, all 
orders routed by NOS under these circumstances will be routed to away 
markets that are at the best price, and solely on an immediate-or-
cancel basis.
    Although not explicitly stated in Chapter VI, Section 11 of the NOM 
Rules, NOS, like NES, will be subject to exchange non-discrimination 
requirements, and the use of NOS will be optional.\71\ In addition, NOS 
will not engage in any business other than the activities approved by 
the Commission in the NOM Approval Order and such other activities as 
may be approved by the Commission at a later date.
---------------------------------------------------------------------------

    \71\ Consistent with this restriction, Chapter VI, Section 11 of 
the NOM rules provides that routing will be based on the user's 
instructions and that a participant can designate an order as not 
available for routing.
---------------------------------------------------------------------------

    In order to further restrict the interaction between the Exchange 
and NES and NOS, the NASDAQ Exchange has agreed that it will, prior to 
the closing of the NASDAQ OMX Merger, amend its rules to change the 
routing practices of NES and NOS. With respect to NES, directed orders 
will not be eligible for routing to Exchange facilities. With respect 
to NOS, when routing orders in options that are not listed and open for 
trading on NOM, NOS will not route to Exchange facilities. Routing of 
orders that check the NASDAQ Exchange and NOM books prior to routing 
will continue and such orders may be routed to the Exchange as 
appropriate.
    The Exchange notes that at a later date, the Exchange may opt to 
use NES and/or NOS to route on behalf of the Exchange.\72\ Such future 
uses of NES or NOS would be reflected in filings to establish the terms 
and conditions of such routing, but would not allow for routing of 
directed orders to the NASDAQ Exchange, NOM, or any other affiliated 
exchange or trading facility thereof.\73\
---------------------------------------------------------------------------

    \72\ Currently, the Exchange uses PRO Securities LLC (``PRO'') 
to route equity orders. PRO is a wholly-owned subsidiary of Order 
Execution Services Holdings, Inc. The Exchange routes options orders 
through the Intermarket Option Linkage system.
    \73\ In this regard, it should be noted that both the New York 
StockExchange and the NYSE Arca use NYSE Arca's broker-dealer 
subsidiary to perform routing.
---------------------------------------------------------------------------

    In light of the foregoing facts and circumstances, in accordance 
with proposed Exchange Rule 985(b)(i)(B), the Exchange proposes that 
NES and NOS be permitted to become affiliates of the Exchange subject 
to the following:
     With respect to NES, NES remains a facility of the NASDAQ 
Exchange; use of NES's routing function by NASDAQ Exchange members 
continues to be optional; and NES does not provide routing of directed 
orders to the Exchange or any trading facilities thereof, unless such 
orders first attempt to access any liquidity on the NASDAQ Exchange 
book.
     With respect to NOS, NOS remains a facility of the NASDAQ 
Exchange; use of NOS's Routing Facility function by NASDAQ Exchange 
members continues to be optional; and NOS does not provide routing of 
orders in options that are not listed and open for trading on NOM to 
the Exchange or any trading facilities thereof.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act \74\ in general, and furthers the objectives of 
Sections 6(b)(1) and 6(b)(5) of the Act \75\ in particular, in that it 
is designed to enable the Exchange to be so organized as to have the 
capacity to be able to carry out the purposes of the Act and to comply 
with and enforce compliance by members and persons associated with 
members with provisions of the Act, the rules and regulations 
thereunder, and Rules, and is designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, to foster cooperation and coordination with 
persons engaged in regulating, clearing, settling, processing 
information with respect to, and facilitating transactions in 
securities, to remove impediments to and perfect the mechanism of a 
free and open market and a national system, and, in general, to protect 
investors and the public interest.
---------------------------------------------------------------------------

    \74\ 15 U.S.C. 78f(b).
    \75\ 15 U.S.C. 78f(b)(1) and (b)(5).
---------------------------------------------------------------------------

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 that is 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 35 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

[[Page 23301]]

(ii) as to which the Exchange consents, the Commission will:
    A. By order approve such proposed rule change, or
    B. Institute proceedings to determine whether the proposed rule 
change should be disapproved.

    The Exchange has requested accelerated approval of this proposed 
rule change prior to the 30th day after the date of publication of the 
notice of the filing thereof in the Federal Register. The Commission is 
considering the Exchange's request to grant accelerated approval of the 
proposed rule change following the conclusion of the 21-day comment 
period.

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 rule-comments@sec.gov. Please include 
File Number SR-Phlx-2008-31 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-2008-31. 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 inspection and 
copying 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-2008-31 and should be 
submitted on or before May 20, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\76\
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    \76\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E8-9323 Filed 4-28-08; 8:45 am]

BILLING CODE 8010-01-P
