
[Federal Register: March 11, 2009 (Volume 74, Number 46)]
[Notices]               
[Page 10626-10628]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11mr09-150]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59496; File No. SR-BSECC-2009-01]

 
Self-Regulatory Organizations; Boston Stock Exchange Clearing 
Corporation; Notice of Filing and Immediate Effectiveness of a Proposed 
Rule Change To Amend the Certificate of Incorporation of The NASDAQ OMX 
Group, Inc.

March 3, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ notice is hereby given that on February 17, 2009, Boston 
Stock Exchange Clearing Corporation (``BSECC'') filed with the 
Securities and Exchange Commission (``Commission'') the proposed rule 
change described in Items I, II, and III below, which items have been 
prepared primarily by BSECC. BSECC filed the proposed rule change 
pursuant to Section 19(b)(3)(A)(iii) of the Act \2\ and Rule 19b-
4(f)(3) thereunder \3\ so that the proposal was effective upon filing 
with the Commission. The Commission is publishing this notice to 
solicit comments on the proposed rule change from interested parties.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \3\ 17 CFR 240.19b-4(f)(3).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    BSECC is filing this proposed rule change with regard to proposed 
changes to the Restated Certificate of Incorporation (``Certificate'') 
of its parent corporation, The NASDAQ OMX Group, Inc. (``NASDAQ OMX''). 
The

[[Page 10627]]

proposed rule change will be implemented as soon as practicable 
following filing with the Commission. The text of the proposed rule 
change is available at http://www.nasdaqtrader.com/
Trader.aspx?id=BSECCIE2009 and at the Commission's public reference 
room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, BSECC included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. BSECC has prepared summaries, set forth in sections (A), 
(B), and (C) below, of the most significant aspects of these 
statements.\4\
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    \4\ The Commission has modified the text of the summaries 
prepared by BSECC.
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(A) Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    NASDAQ OMX is proposing to make amendments to its Certificate. As 
provided in Articles XI and XII of the NASDAQ OMX By-Laws, proposed 
amendments to the Certificate are to be reviewed by the Board of 
Directors of each self-regulatory subsidiary of NASDAQ OMX, and if any 
such proposed amendment must be filed with or filed with and approved 
by the Commission under Section 19 of the Act and the rules promulgated 
thereunder before such amendment may be effective, then such amendment 
shall not be effective until filed with or filed with and approved by 
the Commission as the case may be. The governing boards of the NASDAQ 
Stock Market LLC (``NASDAQ Exchange''), NASDAQ OMX BX, Inc. (``BX''), 
NASDAQ OMX Phlx, Inc. (``Phlx''), BSECC, and Stock Clearing Corporation 
of Philadelphia (``SCCP'') have each reviewed the proposed change and 
determined that it should be filed with the Commission.\5\ The changes 
to the Certificate are limited in scope, and under Delaware law, they 
do not require approval by the stockholders of NASDAQ OMX.
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    \5\ The NASDAQ Exchange, Phlx, BX, BSECC, and SCCP have each 
submitted this proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act, 15 U.S.C. 78s(b)(3)(A)(iii).
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    Specifically, NASDAQ OMX proposes to eliminate its Certificate of 
Designations, Preferences and Rights of Series D Preferred Stock, and 
all matters set forth therein. NASDAQ OMX's Series D Stock was created 
in 2005 for the purpose of allowing National Association of Securities 
Dealers, Inc. to retain voting control over NASDAQ OMX's predecessor, 
The Nasdaq Stock Market, Inc. In connection with the NASDAQ Exchange 
commencing operations as a national securities exchange, the sole share 
of Series D Stock was redeemed in December 2006. Under Delaware law, 
both a certificate of designations (designating a series of preferred 
stock) and a certificate of elimination (eliminating a previously 
adopted designation) are deemed to be amendments to NASDAQ OMX's 
Certificate.
2. Statutory Basis
    BSECC believes that the proposed rule change is consistent with 
provisions of Section 17A of the Act,\6\ in general, and with Section 
17A(b)(3)(A) of the Act,\7\ in particular, in that it is designed to 
ensure that BSECC is so organized and has the capacity to be able to 
facilitate the prompt and accurate clearance and settlement of 
securities transactions. The proposed change will enhance the clarity 
of NASDAQ OMX's governance documents by eliminating provisions relating 
to a series of preferred stock that is no longer outstanding.
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    \6\ 15 U.S.C. 78q-1.
    \7\ 15 U.S.C. 78q-1(b)(3)(A).
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(B) Self-Regulatory Organization's Statement on Burden on Competition

    BSECC does not believe that the proposed rule change will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act, as amended.

(C) Self-Regulatory Organization's Statement on Comments on the 
Proposed Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The foregoing rule change has become effective upon filing pursuant 
to Section 19(b)(3)(A)(iii) of the Act \8\ and Rule 19b-4(f)(3) \9\ 
thereunder because the proposal is concerned solely with the 
administration of BSECC. At any time within sixty days of the filing of 
such rule change, the Commission may summarily abrogate such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act.
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    \8\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \9\ 17 CFR 240.19b-4(f)(3).
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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-BSECC-2009-01 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BSECC-2009-01. 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. The text of the proposed rule change is available at 
BSECC, the Commission's Public Reference Room, and http://
www.nasdaqtrader.com/Trader.aspx?id=BSECCIE2009. 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-BSECC-2009-01 and

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should be submitted on or before April 1, 2009.
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    \10\ 17 CFR 200.30-3(a)(12).

    For the Commission by the Division of Trading and Markets, 
pursuant to delegated authority.\10\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-5210 Filed 3-10-09; 8:45 am]

BILLING CODE 8011-01-P
