Self-Regulatory Organizations; Boston Stock Exchange Clearing Corporation; Notice of Filing of Proposed Rule Change To Amend the Articles of Organization and By-Laws of Boston Stock Exchange Clearing Corporation, 11983-11985 [E9-6084]
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Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Notices
Exchange. Accordingly, the proposal
will take effect upon filing with the
Commission. At any time within 60
days of the filing of such proposed 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.
should submit only information that
you wish to make available publicly. All
submissions should refer to File
Number SR–ISE–2009–07 and should be
submitted on or before April 10, 2009.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.7
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9–6086 Filed 3–19–09; 8:45 am]
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:
BILLING CODE 8011–01–P
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–ISE–2009–07 on the subject
line.
Self-Regulatory Organizations; Boston
Stock Exchange Clearing Corporation;
Notice of Filing of Proposed Rule
Change To Amend the Articles of
Organization and By-Laws of Boston
Stock Exchange Clearing Corporation
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–ISE–2009–07. 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
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SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–59571; File No. SR–
BSECC–2009–02]
March 12, 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 February
20, 2009, Boston Stock Exchange
Clearing Corporation (‘‘BSECC’’) 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 BSECC. 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
BSECC is filing this proposed rule
change with regard to proposed changes
to its Articles of Organization and ByLaws to increase its authorized shares
and to reflect a transfer in ownership of
five percent of BSECC’s shares. BSECC
is also proposing to amend its Articles
of Organization and By-Laws to change
its name to the Nasdaq Clearing
Corporation and to make other
miscellaneous changes. The proposed
rule change will be implemented as
soon as practicable following approval
by the Commission. The text of the
proposed rule change is available from
the Commission’s public reference room
and at https://
nasdaqomxbx.cchwallstreet.com.
7 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
1 15
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11983
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 such statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
On August 29, 2008, The NASDAQ
OMX Group, Inc. (‘‘NASDAQ OMX’’)
completed its acquisition of Boston
Stock Exchange, Incorporated (recently
renamed NASDAQ OMX BX, Inc.) and
several of its wholly owned
subsidiaries, including BSECC. As a
result, BSECC has become an indirect
wholly owned subsidiary of NASDAQ
OMX. On January 5, 2009, OMX AB,
which is another indirect wholly owned
subsidiary of NASDAQ OMX, entered
into agreements with Fortis Bank Global
Clearing N.V. (‘‘Fortis’’) and European
Multilateral Clearing Facility N.V.
(‘‘EMCF’’), pursuant to which, among
other things, OMX AB (i) has acquired
a 22% equity stake in EMCF and (ii) has
agreed to acquire a 5% equity stake in
BSECC from NASDAQ OMX BX, Inc.
and in turn to transfer this stake to
EMCF.
The Articles of BSECC provide that:
All of the authorized shares of Common
Stock of [BSECC] shall be issued and
outstanding, and shall be held by Boston
Stock Exchange, Incorporated, a Delaware
corporation. Boston Stock Exchange,
Incorporated may not transfer or assign any
shares of stock of BSECC, in whole or in part,
to any entity, unless such transfer or
assignment shall be filed with and approved
by the U.S. Securities and Exchange
Commission under Section 19 of the
Securities Exchange Act of 1934, as
amended, and the rules promulgated
thereunder.
Accordingly, in order to complete the
transfer of shares of BSECC
contemplated by the agreements, BSECC
must amend the Articles to specify an
additional stockholder in BSECC and
must obtain Commission approval for
the transfer of stock. In addition, BSECC
is proposing to amend the Articles and
its By-Laws to change its name to
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11984
Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Notices
NASDAQ Clearing Corporation and to
adopt other miscellaneous changes.
EMCF is a central counterparty
clearinghouse for European equity
trading on exchanges and multilateral
trading facilities, including NASDAQ
OMX Europe Ltd., Chi-X Europe Ltd.,
and BATS Trading Europe Ltd. In
addition, EMCF has agreed to provide
central counterparty clearing services to
NASDAQ OMX exchanges in
Stockholm, Helsinki, Copenhagen, and
Iceland. EMCF clears stocks traded on
multiple European markets, including
stocks comprising the AEX, DAX,
FTSE100, CAC40, and SMI20 indexes.
Services offered by EMCF include
novation, gross trade netting, settlement,
margining, and fails and buy-in
management. EMCF is headquartered in
the Netherlands, and is subject to
voluntary supervision by De
Nederlandsche Bank and Autoriteit
Financiele Markten. In addition to OMX
AB, EMCF’s stockholders are Fortis
Bank Nederland (Holding) N.V. and
Fortis Bank Global Clearing N.V.
NASDAQ OMX and EMCF’s other
stockholders will seek to further
broaden EMCF’s ownership structure to
include order flow providers and
financial institutions. It is expected that
this will increase the commitment of
banks and flow providers towards
EMCF, decrease EMCF’s dependence on
one shareholder, and demonstrate to the
market that EMCF is a solid company
with firm backing of shareholders with
high standing and that EMCF is a
company that looks after the interests of
all its interested parties. Also, a key
purpose of the diversified shareholders’
base is to facilitate the further
development of EMCF into becoming
the leading central counterparty services
provider for European cash equities.
Under the Share Transfer Agreement
dated January 5, 2009, among Fortis,
OMX AB, and EMCF, OMX AB has
agreed, subject to Commission approval,
to transfer a 5% stake in BSECC to
EMCF. The transfer of BSECC’s shares is
a portion of the consideration to be paid
by OMX AB for obtaining a 22% stake
in EMCF. Accordingly, OMX AB must
obtain the shares from NASDAQ OMX
BX, Inc. prior to transferring them to
EMCF. OMX AB has agreed to
undertake to use reasonable endeavors
to obtain Commission approval for the
transfer as soon as possible and in any
event by July 5, 2009.
Currently, the authorized share
capital of BSECC is 150 shares, par
value $100. Because 5% of 150 is 7.5,
BSECC must increase its authorized
share capital and pay a 2 for 1 stock
dividend to NASDAQ OMX BX, Inc.
such that it will own 300 shares and be
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17:07 Mar 19, 2009
Jkt 217001
able to transfer 15 of them. Accordingly,
BSECC also proposes to amend its
Articles in order to increase its
authorized share capital. BSECC
proposes to amend its Articles to reflect
either OMX AB or EMCF as one of its
stockholders (as well as the name
change of NASDAQ OMX BX, Inc.).
The amended provisions would state:
All of the authorized shares of Common
Stock of [BSECC] shall be issued and
outstanding, and shall be held by NASDAQ
OMX BX, Inc., a Delaware corporation, and
either OMX AB, a corporation organized
under the laws of Sweden, or European
Multilateral Clearing Facility, N.V., a public
company with limited liability incorporated
under the laws of the Netherlands.
The language in the Articles
providing that a stockholder may not
transfer or assign shares of stock of
BSECC without approval of the
Commission would remain in place,
such that all of the stockholders of
BSECC would be bound by that
restriction.
The Share Transfer Agreement also
provides that under certain
circumstances, EMCF may transfer the
shares of BSECC back to OMX AB or
NASDAQ OMX BX, Inc., thereby
unwinding this aspect of the
transaction. In order to avoid the need
to seek approval for such an unwinding
in the future, BSECC requests that the
Commission approve at this time both
the initial transfer and any future
unwinding.
Finally, at the time of the transfer
EMCF and NASDAQ OMX BX, Inc. will
enter into a Shareholders Agreement to
govern their relationship with respect to
BSECC. The key provisions of the
Shareholders Agreement are as follows.
First, EMCF will grant BSECC a right of
first refusal to purchase all or any
portion of its shares that EMCF may
propose to transfer. Second, if NASDAQ
OMX BX, Inc. proposes to transfer any
of its shares of BSECC to any person, it
must provide EMCF with the right to
substitute EMCF’s shares in such
transfer in proportion to EMCF’s
percentage share of ownership in
BSECC. Third, if NASDAQ OMX BX,
Inc. proposes to enter into a transaction
under which it would no longer own a
majority of BSECC’s outstanding shares
or a sale of all or substantially all of the
assets of BSECC (‘‘Sale Transaction’’),
EMCF will in most circumstances take
such actions as are necessary to support
the consummation of the Sale
Transaction. Fourth, if BSECC issues
new securities it must first offer them to
NASDAQ OMX BX, Inc. and EMCF.
Finally, the Shareholders Agreement
provides for rights of the stockholders to
obtain information from BSECC about
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its financial performance and
operations.
Because the share transfers described
by the Shareholders Agreement would
require Commission approval under the
Articles, the Agreement also provides
that ‘‘[n]othing in the Agreement shall
be construed to authorize [BSECC] or
any stockholder of [BSECC] to transfer
any share or other interests in [BSECC]
unless such transfer is approved in
accordance with the restrictions
contained in the [Articles] of [BSECC]
and such other restrictions as may be
imposed by the * * * Commission or
other governmental authority having
jurisdiction over [BSECC].’’
BSECC is also proposing changing its
name from Boston Stock Exchange
Clearing Corporation to NASDAQ
Clearing Corporation. The change
reflects BSECC’s changed status as a
subsidiary of NASDAQ OMX. In
addition, BSECC is proposing the
following miscellaneous changes to its
Articles and By-Laws. First, BSECC is
restating its Articles to consolidate prior
amendments into a single document.
Under Massachusetts law, the form for
restatement of the Articles necessitates
nonsubstantive changes to citations to
Massachusetts statutes in the title of the
Articles, changes to prefatory language
in Article IV of the Articles, and the
addition of nonsubstantive language
regarding date of effectiveness as a new
Article VII. Second, BSECC is amending
the Articles and By-Laws to reflect the
change in the name of Boston Stock
Exchange, Incorporated to NASDAQ
OMX BX, Inc. Finally, BSECC is
correcting several typographical errors
in Article X of the By-Laws.
2. Statutory Basis
The proposed rule change is
consistent with the provisions of
Section 17A of the Act,3 in general, and
with Section 17A(b)(3)(A) of the Act,4 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 change will allow investment in
BSECC by EMCF, a central counterparty
clearinghouse with substantial expertise
in clearing of equity trades on
exchanges and multilateral trading
facilities. At the same time, the changes
are structured to allow the Commission
ongoing oversight over any further
transfers of BSECC’s common stock that
may be proposed in the future.
3 15
4 15
U.S.C. 78q–1.
U.S.C. 78q–1(b)(3)(A).
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Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Notices
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. 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 rulecomments@sec.gov. Please include File
Number SR–BSECC–2009–02 on the
subject line.
nasdaqomxbx.cchwallstreet.com/
NASDAQOMXBX/pdf/bsecc-filings/
2009/SR-BSECC-2009-002.pdf. 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–2009–02 and
should be submitted on or before April
10, 2009.
For the Commission by the Division of
Trading and Markets, pursuant to delegated
authority.5
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9–6084 Filed 3–19–09; 8:45 am]
SMALL BUSINESS ADMINISTRATION
[Disaster Declaration #11645 and #11646]
Arkansas Disaster Number AR–00028
AGENCY: U.S. Small Business
Administration.
ACTION: Amendment 3.
SUMMARY: This is an amendment of the
Presidential declaration of a major
• Send paper comments in triplicate
disaster for Public Assistance Only for
to Elizabeth M. Murphy, Secretary,
the State of Arkansas (FEMA–1819–DR),
Securities and Exchange Commission,
dated 02/06/2009.
100 F Street, NE., Washington, DC
Incident: Severe Winter Storm.
20549–1090.
Incident Period: 01/26/2009 through
01/30/2009.
All submissions should refer to File
Effective Date: 02/24/2009.
Number SR–BSECC–2009–02. This file
Physical Loan Application Deadline
number should be included on the
subject line if e-mail is used. To help the Date: 04/07/2009.
Economic Injury (EIDL) Loan
Commission process and review your
Application Deadline Date: 11/06/2009.
comments more efficiently, please use
only one method. The Commission will ADDRESSES: Submit completed loan
post all comments on the Commission’s applications to: U.S. Small Business
Internet Web site (https://www.sec.gov/
Administration, Processing and
rules/sro.shtml). Copies of the
Disbursement Center, 14925 Kingsport
submission, all subsequent
Road, Fort Worth, TX 76155.
amendments, all written statements
FOR FURTHER INFORMATION CONTACT: A.
with respect to the proposed rule
Escobar, Office of Disaster Assistance,
change that are filed with the
U.S. Small Business Administration,
Commission, and all written
409 3rd Street, SW., Suite 6050,
communications relating to the
Washington, DC 20416.
proposed rule change between the
SUPPLEMENTARY INFORMATION: The notice
Commission and any person, other than
of the President’s major disaster
those that may be withheld from the
declaration for private non-profit
public in accordance with the
organizations in the State of Arkansas,
provisions of 5 U.S.C. 552, will be
dated 02/06/2009, is hereby amended to
available for inspection and copying in
include the following areas as adversely
the Commission’s Public Reference
affected by the disaster.
Room, 100 F Street, NE., Washington,
Primary Counties: Pope.
DC 20549, on official business days
All other information in the original
between the hours of 10 a.m. and 3 p.m.
declaration remains unchanged.
The text of the proposed rule change is
available at BSECC, the Commission’s
5 17 CFR 200.30–3(a)(12).
Public Reference Room, and https://
17:07 Mar 19, 2009
Jkt 217001
(Catalog of Federal Domestic Assistance
Numbers 59002 and 59008)
Herbert L. Mitchell,
Associate Administrator for Disaster
Assistance.
[FR Doc. E9–6058 Filed 3–19–09; 8:45 am]
BILLING CODE 8025–01–P
SMALL BUSINESS ADMINISTRATION
[Disaster Declaration #11663 and #11664]
Missouri Disaster Number MO–00036
AGENCY: U.S. Small Business
Administration.
ACTION:
Amendment 1.
BILLING CODE
Paper Comments
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11985
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SUMMARY: This is an amendment of the
Presidential declaration of a major
disaster for Public Assistance Only for
the State of Missouri (FEMA–1822–
DR)), dated 02/17/2009.
Incident: Severe Winter Storm.
Incident Period: 01/26/2009 through
01/28/2009.
Effective Date: 02/24/2009.
Physical Loan Application Deadline
Date: 04/20/2009.
Economic Injury (EIDL) Loan
Application Deadline Date: 11/17/2009.
ADDRESSES: Submit completed loan
applications to: U.S. Small Business
Administration, Processing and
Disbursement Center, 14925 Kingsport
Road, Fort Worth, TX 76155.
FOR FURTHER INFORMATION CONTACT: A.
Escobar, Office of Disaster Assistance,
U.S. Small Business Administration,
409 3rd Street, SW., Suite 6050,
Washington, DC 20416.
The notice
of the President’s major disaster
declaration for Private non-profit
organizations in the State of Missouri,
dated 02/17/2009, is hereby amended to
include the following areas as adversely
affected by the disaster.
SUPPLEMENTARY INFORMATION:
Primary Counties: Barry.
All other information in the original
declaration remains unchanged.
(Catalog of Federal Domestic Assistance
Numbers 59002 and 59008)
Herbert L. Mitchell,
Associate Administrator for Disaster
Assistance.
[FR Doc. E9–6057 Filed 3–19–09; 8:45 am]
BILLING CODE 8025–01–P
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]]>Agencies
[Federal Register Volume 74, Number 53 (Friday, March 20, 2009)]
[Notices]
[Pages 11983-11985]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-6084]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-59571; File No. SR-BSECC-2009-02]
Self-Regulatory Organizations; Boston Stock Exchange Clearing
Corporation; Notice of Filing of Proposed Rule Change To Amend the
Articles of Organization and By-Laws of Boston Stock Exchange Clearing
Corporation
March 12, 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 February 20, 2009, Boston Stock Exchange Clearing Corporation
(``BSECC'') 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 BSECC. 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
BSECC is filing this proposed rule change with regard to proposed
changes to its Articles of Organization and By-Laws to increase its
authorized shares and to reflect a transfer in ownership of five
percent of BSECC's shares. BSECC is also proposing to amend its
Articles of Organization and By-Laws to change its name to the Nasdaq
Clearing Corporation and to make other miscellaneous changes. The
proposed rule change will be implemented as soon as practicable
following approval by the Commission. The text of the proposed rule
change is available from the Commission's public reference room and at
https://nasdaqomxbx.cchwallstreet.com.
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 such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
On August 29, 2008, The NASDAQ OMX Group, Inc. (``NASDAQ OMX'')
completed its acquisition of Boston Stock Exchange, Incorporated
(recently renamed NASDAQ OMX BX, Inc.) and several of its wholly owned
subsidiaries, including BSECC. As a result, BSECC has become an
indirect wholly owned subsidiary of NASDAQ OMX. On January 5, 2009, OMX
AB, which is another indirect wholly owned subsidiary of NASDAQ OMX,
entered into agreements with Fortis Bank Global Clearing N.V.
(``Fortis'') and European Multilateral Clearing Facility N.V.
(``EMCF''), pursuant to which, among other things, OMX AB (i) has
acquired a 22% equity stake in EMCF and (ii) has agreed to acquire a 5%
equity stake in BSECC from NASDAQ OMX BX, Inc. and in turn to transfer
this stake to EMCF.
The Articles of BSECC provide that:
All of the authorized shares of Common Stock of [BSECC] shall be
issued and outstanding, and shall be held by Boston Stock Exchange,
Incorporated, a Delaware corporation. Boston Stock Exchange,
Incorporated may not transfer or assign any shares of stock of
BSECC, in whole or in part, to any entity, unless such transfer or
assignment shall be filed with and approved by the U.S. Securities
and Exchange Commission under Section 19 of the Securities Exchange
Act of 1934, as amended, and the rules promulgated thereunder.
Accordingly, in order to complete the transfer of shares of BSECC
contemplated by the agreements, BSECC must amend the Articles to
specify an additional stockholder in BSECC and must obtain Commission
approval for the transfer of stock. In addition, BSECC is proposing to
amend the Articles and its By-Laws to change its name to
[[Page 11984]]
NASDAQ Clearing Corporation and to adopt other miscellaneous changes.
EMCF is a central counterparty clearinghouse for European equity
trading on exchanges and multilateral trading facilities, including
NASDAQ OMX Europe Ltd., Chi-X Europe Ltd., and BATS Trading Europe Ltd.
In addition, EMCF has agreed to provide central counterparty clearing
services to NASDAQ OMX exchanges in Stockholm, Helsinki, Copenhagen,
and Iceland. EMCF clears stocks traded on multiple European markets,
including stocks comprising the AEX, DAX, FTSE100, CAC40, and SMI20
indexes. Services offered by EMCF include novation, gross trade
netting, settlement, margining, and fails and buy-in management. EMCF
is headquartered in the Netherlands, and is subject to voluntary
supervision by De Nederlandsche Bank and Autoriteit Financiele Markten.
In addition to OMX AB, EMCF's stockholders are Fortis Bank Nederland
(Holding) N.V. and Fortis Bank Global Clearing N.V. NASDAQ OMX and
EMCF's other stockholders will seek to further broaden EMCF's ownership
structure to include order flow providers and financial institutions.
It is expected that this will increase the commitment of banks and flow
providers towards EMCF, decrease EMCF's dependence on one shareholder,
and demonstrate to the market that EMCF is a solid company with firm
backing of shareholders with high standing and that EMCF is a company
that looks after the interests of all its interested parties. Also, a
key purpose of the diversified shareholders' base is to facilitate the
further development of EMCF into becoming the leading central
counterparty services provider for European cash equities.
Under the Share Transfer Agreement dated January 5, 2009, among
Fortis, OMX AB, and EMCF, OMX AB has agreed, subject to Commission
approval, to transfer a 5% stake in BSECC to EMCF. The transfer of
BSECC's shares is a portion of the consideration to be paid by OMX AB
for obtaining a 22% stake in EMCF. Accordingly, OMX AB must obtain the
shares from NASDAQ OMX BX, Inc. prior to transferring them to EMCF. OMX
AB has agreed to undertake to use reasonable endeavors to obtain
Commission approval for the transfer as soon as possible and in any
event by July 5, 2009.
Currently, the authorized share capital of BSECC is 150 shares, par
value $100. Because 5% of 150 is 7.5, BSECC must increase its
authorized share capital and pay a 2 for 1 stock dividend to NASDAQ OMX
BX, Inc. such that it will own 300 shares and be able to transfer 15 of
them. Accordingly, BSECC also proposes to amend its Articles in order
to increase its authorized share capital. BSECC proposes to amend its
Articles to reflect either OMX AB or EMCF as one of its stockholders
(as well as the name change of NASDAQ OMX BX, Inc.).
The amended provisions would state:
All of the authorized shares of Common Stock of [BSECC] shall be
issued and outstanding, and shall be held by NASDAQ OMX BX, Inc., a
Delaware corporation, and either OMX AB, a corporation organized
under the laws of Sweden, or European Multilateral Clearing
Facility, N.V., a public company with limited liability incorporated
under the laws of the Netherlands.
The language in the Articles providing that a stockholder may not
transfer or assign shares of stock of BSECC without approval of the
Commission would remain in place, such that all of the stockholders of
BSECC would be bound by that restriction.
The Share Transfer Agreement also provides that under certain
circumstances, EMCF may transfer the shares of BSECC back to OMX AB or
NASDAQ OMX BX, Inc., thereby unwinding this aspect of the transaction.
In order to avoid the need to seek approval for such an unwinding in
the future, BSECC requests that the Commission approve at this time
both the initial transfer and any future unwinding.
Finally, at the time of the transfer EMCF and NASDAQ OMX BX, Inc.
will enter into a Shareholders Agreement to govern their relationship
with respect to BSECC. The key provisions of the Shareholders Agreement
are as follows. First, EMCF will grant BSECC a right of first refusal
to purchase all or any portion of its shares that EMCF may propose to
transfer. Second, if NASDAQ OMX BX, Inc. proposes to transfer any of
its shares of BSECC to any person, it must provide EMCF with the right
to substitute EMCF's shares in such transfer in proportion to EMCF's
percentage share of ownership in BSECC. Third, if NASDAQ OMX BX, Inc.
proposes to enter into a transaction under which it would no longer own
a majority of BSECC's outstanding shares or a sale of all or
substantially all of the assets of BSECC (``Sale Transaction''), EMCF
will in most circumstances take such actions as are necessary to
support the consummation of the Sale Transaction. Fourth, if BSECC
issues new securities it must first offer them to NASDAQ OMX BX, Inc.
and EMCF. Finally, the Shareholders Agreement provides for rights of
the stockholders to obtain information from BSECC about its financial
performance and operations.
Because the share transfers described by the Shareholders Agreement
would require Commission approval under the Articles, the Agreement
also provides that ``[n]othing in the Agreement shall be construed to
authorize [BSECC] or any stockholder of [BSECC] to transfer any share
or other interests in [BSECC] unless such transfer is approved in
accordance with the restrictions contained in the [Articles] of [BSECC]
and such other restrictions as may be imposed by the * * * Commission
or other governmental authority having jurisdiction over [BSECC].''
BSECC is also proposing changing its name from Boston Stock
Exchange Clearing Corporation to NASDAQ Clearing Corporation. The
change reflects BSECC's changed status as a subsidiary of NASDAQ OMX.
In addition, BSECC is proposing the following miscellaneous changes to
its Articles and By-Laws. First, BSECC is restating its Articles to
consolidate prior amendments into a single document. Under
Massachusetts law, the form for restatement of the Articles
necessitates nonsubstantive changes to citations to Massachusetts
statutes in the title of the Articles, changes to prefatory language in
Article IV of the Articles, and the addition of nonsubstantive language
regarding date of effectiveness as a new Article VII. Second, BSECC is
amending the Articles and By-Laws to reflect the change in the name of
Boston Stock Exchange, Incorporated to NASDAQ OMX BX, Inc. Finally,
BSECC is correcting several typographical errors in Article X of the
By-Laws.
2. Statutory Basis
The proposed rule change is consistent with the provisions of
Section 17A of the Act,\3\ in general, and with Section 17A(b)(3)(A) of
the Act,\4\ 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 change will allow investment in BSECC by EMCF, a
central counterparty clearinghouse with substantial expertise in
clearing of equity trades on exchanges and multilateral trading
facilities. At the same time, the changes are structured to allow the
Commission ongoing oversight over any further transfers of BSECC's
common stock that may be proposed in the future.
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\3\ 15 U.S.C. 78q-1.
\4\ 15 U.S.C. 78q-1(b)(3)(A).
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[[Page 11985]]
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. 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-BSECC-2009-02 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-2009-02. 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. The text of the proposed rule change is available at
BSECC, the Commission's Public Reference Room, and https://
nasdaqomxbx.cchwallstreet.com/NASDAQOMXBX/pdf/bsecc-filings/2009/SR-
BSECC-2009-002.pdf. 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-2009-02 and should be submitted on or before April 10, 2009.
For the Commission by the Division of Trading and Markets,
pursuant to delegated authority.\5\
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\5\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-6084 Filed 3-19-09; 8:45 am]
BILLING CODE
