
[Federal Register Volume 77, Number 21 (Wednesday, February 1, 2012)]
[Notices]
[Pages 5067-5068]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2131]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66243; File No. SR-NSX-2012-03]


Self-Regulatory Organizations; National Stock Exchange, Inc.; 
Notice of Filing and Immediate Effectiveness of a Proposed Rule Change 
To Effectuate an Amendment to Its Amended and Restated Certificate of 
Incorporation To Include a Reference to Section 242 of the General 
Corporation Law of the State of Delaware

January 26, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on January 20, 2012, National Stock Exchange, Inc. 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 prepared by the Exchange. The Commission is publishing this notice 
to solicit comment 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

    National Stock Exchange, Inc. (``NSX[supreg]'' or ``Exchange'') 
proposes to effectuate an amendment to its Amended and Restated 
Certificate of Incorporation to include a reference to Section 242 of 
the General Corporation Law of the State of Delaware.

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 parts of such 
statements.

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

1. Purpose
    With this rule change, the Exchange is proposing to effectuate an 
amendment to its Amended and Restated Certificate of Incorporation 
(``Certificate'') to include a reference to Section 242 of the General 
Corporation Law of the State of Delaware (``Delaware Corporation 
Law'').
    Section 242 of Delaware Corporation Law refers to amendments to 
certificates of incorporation after the receipt of payment for 
stock.\3\ Section 242 states that, after receipt of payment for stock, 
a corporation ``may amend its certificate of incorporation * * * so 
long as its certificate of incorporation as amended would contain only 
such provisions as it would be lawful and proper to insert in an 
original certificate of incorporation filed at the time of the filing 
of the amendment.'' \4\ Amended certificates of incorporation must 
explicitly reference Section 242 to be deemed acceptable for filing 
with the Delaware Secretary of State.
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    \3\ 8 Del. C. 1953, 242.
    \4\ 8 Del. C. 1953, 242(a).
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    On November 28, 2011, the Exchange filed with the Commission, as 
part of its Exhibit 5 to a rule filing seeking Commission approval of 
the acquisition of the Exchange by CBOE Stock Exchange, LLC, a proposed 
form of Certificate. The Certificate in the form

[[Page 5068]]

proposed was approved by the Commission on December 29, 2011.\5\ 
However, the Certificate in the form proposed failed to contain an 
explicit reference to Section 242 of Delaware Corporation Law. Instead, 
the last sentence in the first paragraph of the approved Certificate 
stated ``* * * [p]ursuant to, and being duly adopted in accordance 
with, Section 245 of the General Corporation Law of the State of 
Delaware, this * * * Certificate * * * amends and restates the Restated 
Certificate of Incorporation in its entirety * * *.''
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    \5\ See Securities Exchange Act Release No. 66071 (December 29, 
2011) (SR-NSX-2011-14 and SR-CBOE-2011-107).
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    On December 30, 2011, the Certificate, in the form approved by the 
Commission (i.e., without explicit reference to Section 242), was 
submitted for filing to the Delaware Secretary of State. The Delaware 
Secretary of State refused to accept the Certificate unless a reference 
to Section 242 was added to the text of the Certificate. Such reference 
was added and the Certificate, as modified, was accepted by and 
successfully filed with the Delaware Secretary of State. As a result, 
pursuant the instant rule filing, the Exchange is proposing to amend 
the text of the Certificate previously filed with, and approved by, the 
Commission by explicitly referencing Section 242 of the Delaware 
Corporation Law in the text of the Certificate immediately before the 
reference to Section 245. In so doing, the Exchange seeks to fully 
comply with Delaware Corporation Law and with the Securities Exchange 
Act of 1934 (the ``Act'').
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6(b) of the Act,\6\ in general, and 
Section 6(b)(4) of the Act,\7\ in particular, in that it is designed, 
among other things, to promote clarity, transparency and full 
disclosure, in so doing, to prevent fraudulent and manipulative acts 
and practices, to promote just and equitable principles of trade, to 
remove impediments to and perfect the mechanism of a free and open 
market and a national market system, and, in general, to protect 
investors and the public interest.
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    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(4).
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    Moreover, the proposed rule change is not discriminatory in that it 
is solely administrative and does not affect the rights of any ETP 
Holder, does not impact any other provision of the Certificate, and is 
consistent with the Commission's recent order approving the 
Certificate. The proposed amendment simply adds to the Certificate an 
explicit cross-reference to applicable law and consequently constitutes 
a technical amendment that relates solely to the administration of the 
Exchange and the Exchange's ability to successfully file the 
Certificate with the Delaware Secretary of State.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange 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.

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

    The Exchange has neither solicited nor received written comments on 
the proposed rule change.

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

    The proposed rule change has taken effect upon filing pursuant to 
Section 19(b)(3)(A)(ii) of the Act \8\ and subparagraph (f)(3) of Rule 
19b-4 \9\ thereunder, because, as provided in (f)(3), the proposed rule 
change is concerned solely with the administration of the self-
regulatory organization. At any time within 60 days of the filing of 
the proposed rule change, the Commission summarily may temporarily 
suspend 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 Securities and Exchange Act of 1934.
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    \8\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \9\ 17 CFR 240.19b-4.
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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 email to rule-comments@sec.gov. Please include 
File Number SR-NSX-2012-03 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-NSX-2012-03. This file 
number should be included on the subject line if email 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 Web site viewing and 
printing 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 such filing will also 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 No. SR-NSX-2012-03 and should be 
submitted on or before February 22, 2012.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-2131 Filed 1-31-12; 8:45 am]
BILLING CODE 8011-01-P


