
[Federal Register: April 22, 2009 (Volume 74, Number 76)]
[Notices]               
[Page 18418-18419]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ap09-87]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59773; File Nos. SR-BX-2009-019, SR-NASDAQ-2009-032, 
SR-Phlx-2009-31]

 
Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; the NASDAQ 
Stock Market LLC; NASDAQ OMX PHLX, Inc.; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Changes To Amend the Certificate of 
Incorporation of the NASDAQ OMX Group, Inc.

April 15, 2009.
    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 2, 2009, NASDAQ OMX BX, Inc. (``BX''), the NASDAQ Stock Market 
LLC (``NASDAQ Exchange'') and NASDAQ OMX PHLX, Inc. (``Phlx'') 
(collectively, the ``NASDAQ OMX Exchange Subsidiaries'') \3\ filed with 
the Securities and Exchange Commission (``Commission'') the proposed 
rule changes as described in Items I, II, and III below, which Items 
have been substantially prepared by the NASDAQ OMX Exchange 
Subsidiaries. The Commission is publishing this notice to solicit 
comments on the proposed rule changes from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ The Commission notes that on April 2, 2009, substantially 
similar filings also were submitted by Boston Stock Exchange 
Clearing Corporation (``BSECC'') (SR-BSECC-2009-003) and Stock 
Clearing Corporation of Philadelphia (``SCCP'') (SR-SCCP-2009-02), 
the clearing corporation subsidiaries of NASDAQ OMX Group, Inc. 
(``NASDAQ OMX'').
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I. Self-Regulatory Organizations' Statement of the Terms of Substance 
of the Proposed Rule Changes

    The NASDAQ OMX Exchange Subsidiaries are filing the proposed rule 
changes with regard to proposed changes to the Restated Certificate of 
Incorporation (the ``Certificate'') of their parent corporation, NASDAQ 
OMX. The proposed rule changes will be implemented as soon as 
practicable following filing with the Commission. The text of the 
proposed rule changes is available at http:// www.cchwallstreet.com/
nasdaqomx/, http://www.nasdaqtrader.com/ Trader.aspx?id=BSEIERules2009, 
and http://www.nasdaqtrader.com/ Micro.aspx?id=PhlxApprovedRulefilings, 
respectively, and at the respective NASDAQ OMX Exchange Subsidiary's 
principal office, and at the Commission's Public Reference Room.

II. Self-Regulatory Organizations' Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Changes

    In their filings with the Commission, each of the NASDAQ OMX 
Exchange Subsidiaries included statements concerning the purpose of and 
basis for its proposed rule change and discussed any comments it 
received on its proposed rule change. The text of these statements may 
be examined at the places specified in Item IV below. Each of the 
NASDAQ OMX Exchange Subsidiaries has prepared summaries, set forth in 
Sections A, B, and C below, of the most significant aspects of such 
statements.

A. Self-Regulatory Organizations' Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Changes

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, under Section 19 of the Act and the rules 
promulgated thereunder, be filed with, or filed with and approved by, 
the Commission 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 BX, the NASDAQ Exchange, Phlx, BSECC, and SCCP have each reviewed 
the proposed change and determined that it should be filed with the 
Commission.\4\ 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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    \4\ BX, the NASDAQ Exchange, Phlx, BSECC, and SCCP have each 
submitted its respective filing 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 is proposing to restate, without 
amendment, its Certificate. The Certificate is composed of a previous 
Restated Certificate of Incorporation adopted in 2003, and numerous 
subsequent amendments, which, under Delaware law, are adopted as 
freestanding documents. However, Delaware law allows the various 
documents comprising a certificate of incorporation to be consolidated 
into a single restated certificate upon approval of a corporation's 
board of directors. The change will assist interested persons, 
including NASDAQ OMX stockholders and Commission staff, in reading the 
Certificate without having to review multiple documents. The restated 
Certificate reflects the deletion of both the Certificate of 
Designations, Preferences and Rights of Series D Preferred Stock and 
the Certificate of Elimination that was recently filed with respect to 
it.\5\ Since the latter component of the Certificate cancels the 
former, they are both deleted from the restated Certificate.
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    \5\ Securities Exchange Act Release No. 59460 (February 26, 
2009), 74 FR 9841 (March 6, 2009) (SR-NASDAQ-2009-010, SR-BX-2009-
009, SR-Phlx-2009-14); Securities Exchange Act Release No. 59496 
(March 3, 2009), 74 FR 10626 (March 11, 2009) (SR-BSECC-2009-01); 
Securities Exchange Act Release No. 59494 (March 3, 2009), 74 FR 
10642 (March 11, 2009) (SR-SCCP-2009-01).
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2. Statutory Basis
    The NASDAQ OMX Exchange Subsidiaries believe that their respective 
proposed rule changes are consistent with the provisions of Section 6 
of the Act,\6\ in general, and with Sections 6(b)(1) and (b)(5) of the 
Act,\7\ in particular, in that the proposal enables the NASDAQ OMX 
Exchange Subsidiaries 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 self-
regulatory organization 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

[[Page 18419]]

mechanism of a free and open market and a national market system, and, 
in general, to protect investors and the public interest. The proposed 
change will enhance the clarity of NASDAQ OMX's governance documents by 
restating the various documents comprising the Certificate as a single 
document.
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    \6\ 15 U.S.C. 78f.
    \7\ 15 U.S.C. 78f(b)(1), (b)(5).
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B. Self-Regulatory Organizations' Statements on Burden on Competition

    The NASDAQ OMX Exchange Subsidiaries do not believe that the 
proposed rule changes 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 Organizations' Statements on Comments on the 
Proposed Rule Changes Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

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

    The foregoing rule changes have become effective pursuant to 
Section 19(b)(3)(A)(iii) of the Act \8\ and subparagraph (f)(3) of Rule 
19b-4 thereunder.\9\ At any time within 60 days of the filing of the 
respective proposed rule change by the applicable NASDAQ OMX Exchange 
Subsidiary, the Commission may summarily abrogate such rule changes 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 
changes, 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 Nos. SR-BX-2009-019, SR-NASDAQ-2009-032, SR-Phlx-2009-31 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 Nos. SR-BX-2009-019, SR-NASDAQ-
2009-032, SR-Phlx-2009-31. These file numbers 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 changes that are filed with the Commission, and all 
written communications relating to the proposed rule changes 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 on official business days between the hours of 10 a.m. 
and 3 p.m. Copies of such filings also will be available for inspection 
and copying at the principal offices 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 Nos. SR-BX-2009-019, SR-NASDAQ-2009-
032, and SR-Phlx-2009-31, and should be submitted on or before May 13, 
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. E9-9202 Filed 4-21-09; 8:45 am]

BILLING CODE 8010-01-P
