Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change to Amend the By-Laws of The NASDAQ OMX Group, Inc. in Connection With Acquisitions of Boston Stock Exchange, Incorporated and Philadelphia Stock Exchange, Inc., 26182-26185 [E8-10212]
Download as PDF
<![CDATA[
26182
Federal Register / Vol. 73, No. 90 / Thursday, May 8, 2008 / Notices
and hold harmless DTC and its affiliates
from and against any and all losses,
damages, liabilities, costs, judgments,
charges, and expenses arising out of or
relating to the use of NIIDS.
Optional Use of NIIDS
The MSRB would like dealers to be
able to use NIIDS before requiring them
to so by rule.11 The MSRB has filed with
the Commission a proposed rule change
that ultimately would require
underwriters to use NIIDS in 2008.12
DTC intends to provide the municipal
securities industry the opportunity to
start using NIIDS on May 5, 2008.
Mandated use of NIIDS for municipal
securities is expected to commence
September 2, 2008. DTC believes that
the municipal securities industry will
use NIIDS during the period NIIDS is
optional (‘‘Optional Period’’) in order to
become accustomed to it. This may
result in Dissemination Agents
inputting incomplete or inaccurate
NIIDS Data Elements while getting
acquainted with NIIDS. Therefore, no
one should rely on the accuracy of the
NIIDS Data Elements during the
Optional Period but rather should
continue to also use existing authorized
sources of such information.
DTC will not charge a service fee to
underwriters that input or receive
information through NIIDS.
Additionally, DTC will not charge a
service fee to information vendors that
receive information through NIIDS for
further dissemination. DTC will charge
a connectivity fee to underwriters,
service providers, and information
vendors that use NIIDS.
mstockstill on PROD1PC66 with NOTICES
III. Discussion
Section 19(b) of the Act directs the
Commission to approve a proposed rule
change of a self-regulatory organization
if it finds that such proposed rule
change is consistent with the
requirements of the Act and the rules
and regulations thereunder applicable to
such organization.13 Section
17A(b)(3)(F) of the Act requires that the
rules of a clearing agency be designed to
promote the prompt and accurate
clearance and settlement of securities
transactions.14 The Commission finds
that DTC’s rule change implementing
NIIDS is consistent with this
11 The MSRB received comment on its proposed
rules that would require underwriters of municipal
securities to participate in NIIDS. See Comments on
MSRB Notice 2007–10 (March 5, 2007) at https://
www.msrb.org/msrb1/rules/RFC/2007/2007–10/
2007–10CommentLetters.asp.
12 Securities Exchange Act Release No. 57131
(January 11, 2008), 73 FR 3295 (January 17, 2008)
[SR–MSRB–2007–08].
13 15 U.S.C. 78s(b).
14 15 U.S.C. 78q–1(b)(3)(F).
VerDate Aug<31>2005
17:22 May 07, 2008
Jkt 214001
requirement because by automating,
standardizing, and centralizing the
collection and dissemination of new
issue information for municipal
securities NIIDS should make the
reporting and clearance and settlement
of trades in municipal securities more
timely and accurate. As a result, DTC’s
proposed rule change should promote
the prompt and accurate clearance and
settlement of securities transactions.15
The Commission believes there is
good cause for approving the proposed
rule change prior to the thirtieth day
after the date of publication of notice of
filing because by so approving the
proposed rule change DTC will be able
to provide a longer Optional Period for
users to use and become accustom to
NIIDS before its use is mandated and
will allow DTC to implement NIIDS
according to its system implementation
schedule.
IV. Conclusion
On the basis of the foregoing, the
Commission finds that the proposed
rule change is consistent with the
requirements of the Act and in
particular Section 17A of the Act and
the rules and regulations thereunder.
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,16 that the
proposed rule change (File No. SR–
DTC–2007–10) be and hereby is
approved on an accelerated basis.
For the Commission by the Division of
Trading and Markets, pursuant to delegated
authority.17
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E8–10213 Filed 5–7–08; 8:45 am]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–57761; File No. SR–
NASDAQ–2008–035]
Self-Regulatory Organizations; The
NASDAQ Stock Market LLC; Notice of
Filing of Proposed Rule Change to
Amend the By-Laws of The NASDAQ
OMX Group, Inc. in Connection With
Acquisitions of Boston Stock
Exchange, Incorporated and
Philadelphia Stock Exchange, Inc.
May 1, 2008.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
15 In approving the proposed rule change, the
Commission considered the proposal’s impact on
efficiency, competition, and capital formation. 15
U.S.C. 78c(f).
16 15 U.S.C. 78s(b)(2).
17 17 CFR 200.30–3(a)(12).
PO 00000
Frm 00109
Fmt 4703
Sfmt 4703
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on April 21,
2008, The NASDAQ Stock Market LLC
(‘‘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
prepared substantially by Nasdaq. The
Commission is publishing this notice to
solicit comments on the proposed rule
change from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of the Substance
of the Proposed Rule Change
The Exchange proposes changes to the
by-laws of its parent corporation, The
NASDAQ OMX Group, Inc. (‘‘NASDAQ
OMX’’). The proposed changes will be
implemented upon approval by the
Commission. The text of the proposed
rule change is available at the
Exchange’s Web site at https://
nasdaq.complinet.com, the Exchange’s
principal office, and 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, 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 October 2, 2007, The Nasdaq
Stock Market, Inc. announced that it
had entered into an agreement with
Boston Stock Exchange, Incorporated
(‘‘BSE’’) pursuant to which NASDAQ
OMX will acquire all of the outstanding
membership interests in BSE, and BSE
will be merged with and into Yellow
Merger Corporation, a Delaware
corporation and wholly owned
subsidiary of NASDAQ OMX, with BSE
surviving the merger (the ‘‘BSE
Merger’’). As a result of the BSE Merger,
BSE will become a Delaware stock
corporation, with 100% of its
outstanding stock owned by NASDAQ
1 15
2 17
U.S.C. 78s(b)(1).
CFR 240.19b–4.
E:\FR\FM\08MYN1.SGM
08MYN1
mstockstill on PROD1PC66 with NOTICES
Federal Register / Vol. 73, No. 90 / Thursday, May 8, 2008 / Notices
OMX. BSE members will receive cash as
consideration for their ownership
interests, and therefore will not retain
ownership interests in BSE or its
affiliates. On November 7, 2007, The
Nasdaq Stock Market, Inc. announced
that it had entered into an agreement
with Philadelphia Stock Exchange, Inc.
(‘‘PHLX’’) pursuant to which NASDAQ
OMX will acquire all of the outstanding
capital stock of PHLX, and PHLX will be
merged with and into Pinnacle Merger
Corp., a Delaware corporation and
wholly owned subsidiary of NASDAQ
OMX, with PHLX surviving the merger
(the ‘‘PHLX Merger’’, and together with
the BSE Merger, the ‘‘Mergers’’).
NASDAQ OMX will operate BSE and
PHLX as wholly owned subsidiaries,
with rules, membership rosters, and
listings that are separate and distinct
from the rules, membership rosters, and
listings of the Exchange. By virtue of the
BSE Merger and the PHLX Merger,
NASDAQ OMX will also acquire control
of Boston Stock Exchange Clearing
Corporation (‘‘BSECC’’) and Stock
Clearing Corporation of Philadelphia
(‘‘SCCP’’), each a registered clearing
agency.
To reflect its ownership of these four
self-regulatory organizations (‘‘SROs’’),
NASDAQ OMX is amending its by-laws
(‘‘By-Laws’’) to make certain governance
provisions that are currently applicable
to the Exchange also applicable to the
newly acquired SROs. The provisions
collectively regulate the actions of
NASDAQ OMX and its directors,
officers and employees in light of its
ownership of the SROs.
First, to assist in the clear drafting of
the changes, NASDAQ OMX is adopting
a definition of ‘‘Self-Regulatory
Subsidiary,’’ which means each of: (i)
the Exchange; (ii) upon the closing of
their acquisition by NASDAQ OMX,
BSE and BSECC; and (iii) upon the
closing of their acquisition by NASDAQ
OMX, PHLX and SCPP. Thus, although
NASDAQ OMX will adopt the
amendment immediately upon
Commission approval, provisions of its
By-Laws that reference the definition of
Self-Regulatory Subsidiary will expand
to include the new subsidiaries as each
Merger closes. Separately, BSE, BSECC,
PHLX and SCPP are filing proposed rule
changes to amend their respective
charters and by-laws to reflect the
Mergers. The BSE Merger will not close
until this filing and the filings by BSE
and BSECC have been approved by the
Commission, and the PHLX Merger will
not close until this filing and the filings
by PHLX and SCPP have been approved
by the Commission. NASDAQ OMX is
also amending the definitions of
‘‘Industry Director,’’ ‘‘Industry
VerDate Aug<31>2005
17:22 May 07, 2008
Jkt 214001
committee member,’’ ‘‘Non-Industry
Director,’’ and ‘‘Non-Industry committee
member’’ to include appropriate
references to the Self-Regulatory
Subsidiaries.
Second, NASDAQ OMX is amending
Section 11.3 of its By-Laws. This section
currently provides for review by the
Exchange’s board of directors of any
proposed adoption, alteration,
amendment, change or repeal (an
‘‘amendment’’) of any By-Law, and
when required by the Act, the filing of
such amendments with the Commission
prior to implementation. NASDAQ
OMX proposes amending this provision
to state that any amendment of any ByLaw shall be submitted to the board of
directors of each Self-Regulatory
Subsidiary, 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. NASDAQ OMX also
proposes adopting new Section 12.6 of
its By-Laws to state that any amendment
of any provision of the NASDAQ OMX
Restated Certificate of Incorporation
(‘‘Certificate’’) shall be submitted to the
board of directors of each SelfRegulatory Subsidiary, 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 filed with the Secretary of
State of the State of Delaware until filed
with, or filed with and approved by, the
Commission, as the case may be.
Third, NASDAQ OMX proposes
amending each of the existing
provisions of Article XII of its By-Laws
to make them applicable to each of the
Self-Regulatory Subsidiaries. Thus,
Section 12.1(a) will provide that for so
long as NASDAQ OMX shall control any
Self-Regulatory Subsidiary, the board of
directors, officers, employees and agents
of NASDAQ OMX shall give due regard
to the preservation of the independence
of the self-regulatory function of each
such Self-Regulatory Subsidiary and to
its obligations to investors and the
general public and shall not take any
actions that would interfere with the
effectuation of any decisions by the
board of directors of any Self-Regulatory
Subsidiary relating to its regulatory
functions (including disciplinary
matters) or the market structures or
PO 00000
Frm 00110
Fmt 4703
Sfmt 4703
26183
clearing systems 3 which it regulates, or
that would interfere with the ability of
any Self-Regulatory Subsidiary to carry
out its responsibilities under the Act.
Section 12.1(b) will provide that all
books and records of each SelfRegulatory Subsidiary reflecting
confidential information pertaining to
the self-regulatory function of a SelfRegulatory Subsidiary (including but
not limited to disciplinary matters,
trading data, trading practices and audit
information) which comes into the
possession of NASDAQ OMX, and the
information contained in those books
and records, shall be retained in
confidence by NASDAQ OMX and
NASDAQ OMX’s directors, officers,
employees and agents, and shall not be
used for any non-regulatory purposes.
The section will continue to provide
that the limit on disclosure is not to be
construed to limit the Commission’s
access to books and records, and that
NASDAQ OMX’s books and records
relating to each Self-Regulatory
Subsidiary shall be maintained in the
United States.
Section 12.1(c) will provide that to
the extent they are related to the
activities of a Self-Regulatory
Subsidiary, NASDAQ OMX’s books,
records, premises, officers, directors,
agents, and employees shall be deemed
to be the books, records, premises,
officers, directors, agents, and
employees of that Self-Regulatory
Subsidiary for the purposes of, and
subject to oversight pursuant to, the Act.
Section 12.2 will provide that
NASDAQ OMX’s officers, directors,
employees, and agents will be deemed
to agree to cooperate with the
Commission and each Self-Regulatory
Subsidiary in respect of the
Commission’s oversight responsibilities
regarding the Self-Regulatory
Subsidiaries and their self-regulatory
functions and responsibilities.
Section 12.3 will provide that
NASDAQ OMX and its officers,
directors, employees and agents will be
deemed to irrevocably submit to the
jurisdiction of the United States federal
courts, the Commission, and each SelfRegulatory Subsidiary for the purposes
of any suit, action or proceeding
pursuant to the United States federal
securities laws, and the rules and
regulations thereunder, arising out of, or
relating to, the activities of any SelfRegulatory Subsidiary, and will be
deemed to waive any defenses based on
lack of personal jurisdiction, subject
matter jurisdiction, or inconvenient
3 The reference to ‘‘clearing systems’’ is new
language that reflects the acquisition of BSECC and
SCCP.
E:\FR\FM\08MYN1.SGM
08MYN1
mstockstill on PROD1PC66 with NOTICES
26184
Federal Register / Vol. 73, No. 90 / Thursday, May 8, 2008 / Notices
venue. NASDAQ OMX and its officers,
directors, employees and agents also
agree to maintain an agent in the United
States for the service of process of a
claim arising out of, or relating to, the
activities of each Self-Regulatory
Subsidiary.
Section 12.4 will provide that
NASDAQ OMX will take such action as
is necessary to insure that its officers,
directors, employees, and agents
consent in writing to the applicability of
Sections 12.1, 12.2, and 12.3 with
respect to activities related to each SelfRegulatory Subsidiary.
Section 12.5 will provide that for as
long as NASDAQ OMX owns any SelfRegulatory Subsidiary, a resolution of
the Board to approve an exemption for
any person under Article Fourth,
Section C.6(b) of the Certificate shall not
be permitted to become effective until
the resolution has been filed with and
approved by the Commission under
Section 19 of the Act.4 The referenced
provision of the Certificate provides that
no NASDAQ OMX stockholder holding
voting securities in excess of 5% of the
total outstanding voting securities may
cast the excess votes, but that the
NASDAQ OMX Board may approve an
exemption from this restriction in
certain very limited circumstances.
Section 12.5 will also be amended to
include provisions that describe limits
on the Board’s authority to approve an
exemption. Specifically, amended
Section 12.5 will provide that the Board
may not approve an exemption under
Article Fourth, Section C.6(b) of the
Certificate: (i) For a registered broker or
dealer or an ‘‘Affiliate’’ thereof (as
defined in the Certificate) (provided
that, for these purposes, an Affiliate
shall not be deemed to include an entity
that either owns ten percent or less of
the equity of a broker or dealer, or the
broker or dealer accounts for one
percent or less of the gross revenues
received by the consolidated entity); or
(ii) an individual or entity that is subject
to a statutory disqualification under
Section 3(a)(39) of the Act. The Board
may approve such an exemption only if
the Board determines that granting such
exemption would (A) Not reasonably be
expected to diminish the quality of, or
public confidence in, NASDAQ OMX or
the Self-Regulatory Subsidiaries or the
other operations of the NASDAQ OMX
and its subsidiaries, on the ability to
prevent fraudulent and manipulative
acts and practices and on investors and
the public, (B) promote just and
equitable principles of trade, foster
4 In addition to adding the reference to SelfRegulatory Subsidiaries, the amendment to this
provision corrects typographical errors.
VerDate Aug<31>2005
17:22 May 07, 2008
Jkt 214001
cooperation and coordination with
persons engaged in regulating, clearing,
settling, processing information with
respect to and facilitating transactions
in securities or assist in the removal of
impediments to or perfection of the
mechanisms for a free and open market
and a national market system, and (C)
would promote the prompt and accurate
clearance and settlement of securities
transactions (and to the extent
applicable, derivative agreements,
contracts and transactions), would
assure the safeguarding of securities and
funds in the custody or control of the
Self-Regulatory Subsidiaries that are
clearing agencies or securities and funds
for which they are responsible, would
foster cooperation and coordination
with persons engaged in the clearance
and settlement of securities
transactions, and would remove
impediments to and perfect the
mechanism of a national system for the
prompt and accurate clearance and
settlement of securities transactions.
Finally, NASDAQ OMX proposes
adopting new Section 12.7 to its ByLaws, which reflects language currently
in the Certificate and makes it more
generally applicable to all SelfRegulatory Subsidiaries. Specifically,
the provision provides that in light of
the unique nature of NASDAQ OMX
and its subsidiaries, including the status
of the Self-Regulatory Subsidiaries as
SROs, the NASDAQ OMX Board of
Directors, when evaluating any issue
(including, but not limited to certain
enumerated change of control
transactions) will take into account all
factors that the Board of Directors deems
relevant, including, but not limited to (i)
The potential impact thereof on the
integrity, continuity and stability of
NASDAQ OMX, the Self-Regulatory
Subsidiaries, and the other operations of
the NASDAQ OMX and its subsidiaries,
on the ability to prevent fraudulent and
manipulative acts and practices and on
investors and the public, (ii) whether
the considered action would promote
just and equitable principles of trade,
foster cooperation and coordination
with persons engaged in regulating,
clearing, settling, processing
information with respect to and
facilitating transactions in securities or
assist in the removal of impediments to
or perfection of the mechanisms for a
free and open market and a national
market system, and (iii) whether the
considered action would promote the
prompt and accurate clearance and
settlement of securities transactions
(and to the extent applicable, derivative
agreements, contracts and transactions),
would assure the safeguarding of
PO 00000
Frm 00111
Fmt 4703
Sfmt 4703
securities and funds in the custody or
control of the Self-Regulatory
Subsidiaries that are clearing agencies
or securities and funds for which they
are responsible, would foster
cooperation and coordination with
persons engaged in the clearance and
settlement of securities transactions,
and would remove impediments to and
perfect the mechanism of a national
system for the prompt and accurate
clearance and settlement of securities
transactions.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
the provisions of Section 6 of the Act,5
in general, and with Sections 6(b)(1) and
(b)(5) of the Act,6 in particular, in that
the proposal enables the Exchange and
the other Self-Regulatory 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 its members and persons
associated with its members with
provisions of the Act, the rules and
regulations thereunder, and the
Exchange’s 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 market
system, and, in general, to protect
investors and the public interest.
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, 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
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
5 15
6 15
U.S.C. 78f.
U.S.C. 78f(b)(1) and (5).
E:\FR\FM\08MYN1.SGM
08MYN1
Federal Register / Vol. 73, No. 90 / Thursday, May 8, 2008 / Notices
longer period to be appropriate and
publishes its reasons for so finding or
(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.
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:
mstockstill on PROD1PC66 with NOTICES
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number SR–NASDAQ–2008–035 on the
subject line.
submissions should refer to File
Number SR–NASDAQ–2008–035 and
should be submitted on or before May
29, 2008.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.7
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E8–10212 Filed 5–7–08; 8:45 am]
17:22 May 07, 2008
Jkt 214001
Dated: May 1, 2008.
C. Miller Crouch,
Principal Deputy Assistant Secretary for
Educational and Cultural Affairs, Department
of State.
[FR Doc. E8–10261 Filed 5–7–08; 8:45 am]
BILLING CODE 4710–05–P
DEPARTMENT OF TRANSPORTATION
BILLING CODE 8010–01–P
Federal Aviation Administration
DEPARTMENT OF STATE
Notice of Approval of Finding of No
Significant Impact (FONSI) on a Short
Form Environmental Assessment (EA);
Chicago/Rockford International
Airport, Rockford, IL
[Public Notice 6127]
Culturally Significant Objects Imported
for Exhibition Determinations: ‘‘Home
Delivery: Fabricating the Modern
Dwelling’’
Notice is hereby given of the
following determinations: Pursuant to
the authority vested in me by the Act of
Paper Comments
October 19, 1965 (79 Stat. 985; 22 U.S.C.
• Send paper comments in triplicate
2459), Executive Order 12047 of March
to Nancy M. Morris, Secretary,
27, 1978, the Foreign Affairs Reform and
Securities and Exchange Commission,
Restructuring Act of 1998 (112 Stat.
Station Place, 100 F Street, NE.,
2681, et seq.; 22 U.S.C. 6501 note, et
Washington, DC 20549–1090.
seq.), Delegation of Authority No. 234 of
All submissions should refer to File
October 1, 1999, Delegation of Authority
Number SR–NASDAQ–2008–035. This
No. 236 of October 19, 1999, as
file number should be included on the
amended, and Delegation of Authority
subject line if e-mail is used. To help the No. 257 of April 15, 2003 [68 FR 19875],
Commission process and review your
I hereby determine that the objects to be
comments more efficiently, please use
included in the exhibition ‘‘Home
only one method. The Commission will Delivery: Fabricating the Modern
post all comments on the Commission’s Dwelling’’, imported from abroad for
Internet Web site (https://www.sec.gov/
temporary exhibition within the United
rules/sro.shtml). Copies of the
States, are of cultural significance. The
submission, all subsequent
objects are imported pursuant to loan
amendments, all written statements
agreements with the foreign owners or
with respect to the proposed rule
custodians. I also determine that the
change that are filed with the
exhibition or display of the exhibit
Commission, and all written
objects at The Museum of Modern Art,
communications relating to the
New York, New York, from on or about
proposed rule change between the
July 20, 2008, until on or about October
Commission and any person, other than 20, 2008, and at possible additional
those that may be withheld from the
exhibitions or venues yet to be
public in accordance with the
determined, is in the national interest.
provisions of 5 U.S.C. 552, will be
Public Notice of these Determinations is
available for inspection and copying in
ordered to be published in the Federal
the Commission’s Public Reference
Register.
Room, 100 F Street, NE., Washington,
FOR FURTHER INFORMATION CONTACT: For
DC 20549, on official business days
between the hours of 10 a.m. and 3 p.m. further information, including a list of
Copies of the filing also will be available the exhibit objects, contact Wolodymyr
Sulzynsky, Attorney-Adviser, Office of
for inspection and copying at the
the Legal Adviser, U.S. Department of
principal office of the Exchange. All
State (telephone: 202/453–8050). The
comments received will be posted
address is U.S. Department of State, SA–
without change; the Commission does
44, 301 4th Street, SW., Room 700,
not edit personal identifying
Washington, DC 20547–0001.
information from submissions. You
should submit only information that
7 17 CFR 200.30–3(a)(12).
you wish to make available publicly. All
VerDate Aug<31>2005
26185
SUMMARY:
PO 00000
Frm 00112
Fmt 4703
Sfmt 4703
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of approval of
documents.
AGENCY:
SUMMARY: The Federal Aviation
Administration (FAA) is issuing this
notice to advise the public of the
approval of a Finding of No Significant
Impact (FONSI) on an Environmental
Assessment for proposed Federal
actions at Chicago/Rockford
International Airport, Rockford, Illinois.
The FONSI specifies that the proposed
federal actions and local development
projects are consistent with existing
environmental policies and objectives as
set forth in the National Environmental
Policy Act of 1969 and will not
significantly affect the quality of the
environment.
A description of the proposed Federal
actions is: (a) To issue an environmental
finding to allow approval of the Airport
Layout Plan (ALP) for the development
items listed below.
The items in the local airport
development project are to: (1) Secure
fill material for air cargo development;
(2) Construct air cargo development
including two buildings and apron area
that would provide a total of
approximately 184,000 square feet of
interior space, approximately 693,000
square feet of apron for taxiing and
parking of up to five widebody aircraft,
automobile/truck parking and access,
and airport service roads, including
grading, drainage, sanitary, electrical,
and lighting, as necessary; (3) Construct
approximately 5,350 linear feet of
sanitary sewer, approximately 1,900
linear feet of storm sewer, lift station
with a 2.16 million gallon per day
capacity and combination and diversion
flow structures for the collection and
treatment of deicing fluids associated
with commercial operations; (4) Obtain
Airport Layout Plan approval for this
proposed project development; and (5)
E:\FR\FM\08MYN1.SGM
08MYN1
]]>Agencies
[Federal Register Volume 73, Number 90 (Thursday, May 8, 2008)]
[Notices]
[Pages 26182-26185]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-10212]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-57761; File No. SR-NASDAQ-2008-035]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing of Proposed Rule Change to Amend the By-Laws of The
NASDAQ OMX Group, Inc. in Connection With Acquisitions of Boston Stock
Exchange, Incorporated and Philadelphia Stock Exchange, Inc.
May 1, 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 NASDAQ Stock Market LLC (``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 prepared substantially by Nasdaq. The Commission is
publishing this notice to solicit comments on the proposed rule change
from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change
The Exchange proposes changes to the by-laws of its parent
corporation, The NASDAQ OMX Group, Inc. (``NASDAQ OMX''). The proposed
changes will be implemented upon approval by the Commission. The text
of the proposed rule change is available at the Exchange's Web site at
https://nasdaq.complinet.com, the Exchange's principal office, and 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, 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 October 2, 2007, The Nasdaq Stock Market, Inc. announced that it
had entered into an agreement with Boston Stock Exchange, Incorporated
(``BSE'') pursuant to which NASDAQ OMX will acquire all of the
outstanding membership interests in BSE, and BSE will be merged with
and into Yellow Merger Corporation, a Delaware corporation and wholly
owned subsidiary of NASDAQ OMX, with BSE surviving the merger (the
``BSE Merger''). As a result of the BSE Merger, BSE will become a
Delaware stock corporation, with 100% of its outstanding stock owned by
NASDAQ
[[Page 26183]]
OMX. BSE members will receive cash as consideration for their ownership
interests, and therefore will not retain ownership interests in BSE or
its affiliates. On November 7, 2007, The Nasdaq Stock Market, Inc.
announced that it had entered into an agreement with Philadelphia Stock
Exchange, Inc. (``PHLX'') pursuant to which NASDAQ OMX will acquire all
of the outstanding capital stock of PHLX, and PHLX will be merged with
and into Pinnacle Merger Corp., a Delaware corporation and wholly owned
subsidiary of NASDAQ OMX, with PHLX surviving the merger (the ``PHLX
Merger'', and together with the BSE Merger, the ``Mergers''). NASDAQ
OMX will operate BSE and PHLX as wholly owned subsidiaries, with rules,
membership rosters, and listings that are separate and distinct from
the rules, membership rosters, and listings of the Exchange. By virtue
of the BSE Merger and the PHLX Merger, NASDAQ OMX will also acquire
control of Boston Stock Exchange Clearing Corporation (``BSECC'') and
Stock Clearing Corporation of Philadelphia (``SCCP''), each a
registered clearing agency.
To reflect its ownership of these four self-regulatory
organizations (``SROs''), NASDAQ OMX is amending its by-laws (``By-
Laws'') to make certain governance provisions that are currently
applicable to the Exchange also applicable to the newly acquired SROs.
The provisions collectively regulate the actions of NASDAQ OMX and its
directors, officers and employees in light of its ownership of the
SROs.
First, to assist in the clear drafting of the changes, NASDAQ OMX
is adopting a definition of ``Self-Regulatory Subsidiary,'' which means
each of: (i) the Exchange; (ii) upon the closing of their acquisition
by NASDAQ OMX, BSE and BSECC; and (iii) upon the closing of their
acquisition by NASDAQ OMX, PHLX and SCPP. Thus, although NASDAQ OMX
will adopt the amendment immediately upon Commission approval,
provisions of its By-Laws that reference the definition of Self-
Regulatory Subsidiary will expand to include the new subsidiaries as
each Merger closes. Separately, BSE, BSECC, PHLX and SCPP are filing
proposed rule changes to amend their respective charters and by-laws to
reflect the Mergers. The BSE Merger will not close until this filing
and the filings by BSE and BSECC have been approved by the Commission,
and the PHLX Merger will not close until this filing and the filings by
PHLX and SCPP have been approved by the Commission. NASDAQ OMX is also
amending the definitions of ``Industry Director,'' ``Industry committee
member,'' ``Non-Industry Director,'' and ``Non-Industry committee
member'' to include appropriate references to the Self-Regulatory
Subsidiaries.
Second, NASDAQ OMX is amending Section 11.3 of its By-Laws. This
section currently provides for review by the Exchange's board of
directors of any proposed adoption, alteration, amendment, change or
repeal (an ``amendment'') of any By-Law, and when required by the Act,
the filing of such amendments with the Commission prior to
implementation. NASDAQ OMX proposes amending this provision to state
that any amendment of any By-Law shall be submitted to the board of
directors of each Self-Regulatory Subsidiary, 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. NASDAQ OMX also proposes adopting
new Section 12.6 of its By-Laws to state that any amendment of any
provision of the NASDAQ OMX Restated Certificate of Incorporation
(``Certificate'') shall be submitted to the board of directors of each
Self-Regulatory Subsidiary, 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 filed with
the Secretary of State of the State of Delaware until filed with, or
filed with and approved by, the Commission, as the case may be.
Third, NASDAQ OMX proposes amending each of the existing provisions
of Article XII of its By-Laws to make them applicable to each of the
Self-Regulatory Subsidiaries. Thus, Section 12.1(a) will provide that
for so long as NASDAQ OMX shall control any Self-Regulatory Subsidiary,
the board of directors, officers, employees and agents of NASDAQ OMX
shall give due regard to the preservation of the independence of the
self-regulatory function of each such Self-Regulatory Subsidiary and to
its obligations to investors and the general public and shall not take
any actions that would interfere with the effectuation of any decisions
by the board of directors of any Self-Regulatory Subsidiary relating to
its regulatory functions (including disciplinary matters) or the market
structures or clearing systems \3\ which it regulates, or that would
interfere with the ability of any Self-Regulatory Subsidiary to carry
out its responsibilities under the Act.
---------------------------------------------------------------------------
\3\ The reference to ``clearing systems'' is new language that
reflects the acquisition of BSECC and SCCP.
---------------------------------------------------------------------------
Section 12.1(b) will provide that all books and records of each
Self-Regulatory Subsidiary reflecting confidential information
pertaining to the self-regulatory function of a Self-Regulatory
Subsidiary (including but not limited to disciplinary matters, trading
data, trading practices and audit information) which comes into the
possession of NASDAQ OMX, and the information contained in those books
and records, shall be retained in confidence by NASDAQ OMX and NASDAQ
OMX's directors, officers, employees and agents, and shall not be used
for any non-regulatory purposes. The section will continue to provide
that the limit on disclosure is not to be construed to limit the
Commission's access to books and records, and that NASDAQ OMX's books
and records relating to each Self-Regulatory Subsidiary shall be
maintained in the United States.
Section 12.1(c) will provide that to the extent they are related to
the activities of a Self-Regulatory Subsidiary, NASDAQ OMX's books,
records, premises, officers, directors, agents, and employees shall be
deemed to be the books, records, premises, officers, directors, agents,
and employees of that Self-Regulatory Subsidiary for the purposes of,
and subject to oversight pursuant to, the Act.
Section 12.2 will provide that NASDAQ OMX's officers, directors,
employees, and agents will be deemed to agree to cooperate with the
Commission and each Self-Regulatory Subsidiary in respect of the
Commission's oversight responsibilities regarding the Self-Regulatory
Subsidiaries and their self-regulatory functions and responsibilities.
Section 12.3 will provide that NASDAQ OMX and its officers,
directors, employees and agents will be deemed to irrevocably submit to
the jurisdiction of the United States federal courts, the Commission,
and each Self-Regulatory Subsidiary for the purposes of any suit,
action or proceeding pursuant to the United States federal securities
laws, and the rules and regulations thereunder, arising out of, or
relating to, the activities of any Self-Regulatory Subsidiary, and will
be deemed to waive any defenses based on lack of personal jurisdiction,
subject matter jurisdiction, or inconvenient
[[Page 26184]]
venue. NASDAQ OMX and its officers, directors, employees and agents
also agree to maintain an agent in the United States for the service of
process of a claim arising out of, or relating to, the activities of
each Self-Regulatory Subsidiary.
Section 12.4 will provide that NASDAQ OMX will take such action as
is necessary to insure that its officers, directors, employees, and
agents consent in writing to the applicability of Sections 12.1, 12.2,
and 12.3 with respect to activities related to each Self-Regulatory
Subsidiary.
Section 12.5 will provide that for as long as NASDAQ OMX owns any
Self-Regulatory Subsidiary, a resolution of the Board to approve an
exemption for any person under Article Fourth, Section C.6(b) of the
Certificate shall not be permitted to become effective until the
resolution has been filed with and approved by the Commission under
Section 19 of the Act.\4\ The referenced provision of the Certificate
provides that no NASDAQ OMX stockholder holding voting securities in
excess of 5% of the total outstanding voting securities may cast the
excess votes, but that the NASDAQ OMX Board may approve an exemption
from this restriction in certain very limited circumstances. Section
12.5 will also be amended to include provisions that describe limits on
the Board's authority to approve an exemption. Specifically, amended
Section 12.5 will provide that the Board may not approve an exemption
under Article Fourth, Section C.6(b) of the Certificate: (i) For a
registered broker or dealer or an ``Affiliate'' thereof (as defined in
the Certificate) (provided that, for these purposes, an Affiliate shall
not be deemed to include an entity that either owns ten percent or less
of the equity of a broker or dealer, or the broker or dealer accounts
for one percent or less of the gross revenues received by the
consolidated entity); or (ii) an individual or entity that is subject
to a statutory disqualification under Section 3(a)(39) of the Act. The
Board may approve such an exemption only if the Board determines that
granting such exemption would (A) Not reasonably be expected to
diminish the quality of, or public confidence in, NASDAQ OMX or the
Self-Regulatory Subsidiaries or the other operations of the NASDAQ OMX
and its subsidiaries, on the ability to prevent fraudulent and
manipulative acts and practices and on investors and the public, (B)
promote just and equitable principles of trade, foster cooperation and
coordination with persons engaged in regulating, clearing, settling,
processing information with respect to and facilitating transactions in
securities or assist in the removal of impediments to or perfection of
the mechanisms for a free and open market and a national market system,
and (C) would promote the prompt and accurate clearance and settlement
of securities transactions (and to the extent applicable, derivative
agreements, contracts and transactions), would assure the safeguarding
of securities and funds in the custody or control of the Self-
Regulatory Subsidiaries that are clearing agencies or securities and
funds for which they are responsible, would foster cooperation and
coordination with persons engaged in the clearance and settlement of
securities transactions, and would remove impediments to and perfect
the mechanism of a national system for the prompt and accurate
clearance and settlement of securities transactions.
---------------------------------------------------------------------------
\4\ In addition to adding the reference to Self-Regulatory
Subsidiaries, the amendment to this provision corrects typographical
errors.
---------------------------------------------------------------------------
Finally, NASDAQ OMX proposes adopting new Section 12.7 to its By-
Laws, which reflects language currently in the Certificate and makes it
more generally applicable to all Self-Regulatory Subsidiaries.
Specifically, the provision provides that in light of the unique nature
of NASDAQ OMX and its subsidiaries, including the status of the Self-
Regulatory Subsidiaries as SROs, the NASDAQ OMX Board of Directors,
when evaluating any issue (including, but not limited to certain
enumerated change of control transactions) will take into account all
factors that the Board of Directors deems relevant, including, but not
limited to (i) The potential impact thereof on the integrity,
continuity and stability of NASDAQ OMX, the Self-Regulatory
Subsidiaries, and the other operations of the NASDAQ OMX and its
subsidiaries, on the ability to prevent fraudulent and manipulative
acts and practices and on investors and the public, (ii) whether the
considered action would promote just and equitable principles of trade,
foster cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to and
facilitating transactions in securities or assist in the removal of
impediments to or perfection of the mechanisms for a free and open
market and a national market system, and (iii) whether the considered
action would promote the prompt and accurate clearance and settlement
of securities transactions (and to the extent applicable, derivative
agreements, contracts and transactions), would assure the safeguarding
of securities and funds in the custody or control of the Self-
Regulatory Subsidiaries that are clearing agencies or securities and
funds for which they are responsible, would foster cooperation and
coordination with persons engaged in the clearance and settlement of
securities transactions, and would remove impediments to and perfect
the mechanism of a national system for the prompt and accurate
clearance and settlement of securities transactions.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\5\ in general, and with
Sections 6(b)(1) and (b)(5) of the Act,\6\ in particular, in that the
proposal enables the Exchange and the other Self-Regulatory
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 its members and persons associated with its members with
provisions of the Act, the rules and regulations thereunder, and the
Exchange's 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 market system, and, in general, to
protect investors and the public interest.
---------------------------------------------------------------------------
\5\ 15 U.S.C. 78f.
\6\ 15 U.S.C. 78f(b)(1) and (5).
---------------------------------------------------------------------------
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, 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
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
[[Page 26185]]
longer period to be appropriate and publishes its reasons for so
finding or (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.
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 (https://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NASDAQ-2008-035 on the subject line.
Paper Comments
Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, Station Place, 100 F
Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2008-035. 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 (https://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-NASDAQ-2008-035 and should
be submitted on or before May 29, 2008.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\7\
Florence E. Harmon,
Deputy Secretary.
---------------------------------------------------------------------------
\7\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
[FR Doc. E8-10212 Filed 5-7-08; 8:45 am]
BILLING CODE 8010-01-P
