Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change to Increase the Ceiling on Its Equity Ownership Interest in BIDS Holdings L.P. to Less Than 10%, 62612-62614 [E9-28470]
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WReier-Aviles on DSKGBLS3C1PROD with NOTICES
62612
Federal Register / Vol. 74, No. 228 / Monday, November 30, 2009 / Notices
whose public shareholders purchase
shares on the basis of a prospectus
containing the disclosure contemplated
by condition 4 below, by the initial
shareholder(s) before offering shares of
such Fund to the public.
3. Within 90 days of the hiring of any
new investment subadvisor, the Adviser
will furnish shareholders of the affected
Fund with all information about such
investment subadvisor that would be
included in a proxy statement,
including any change in such disclosure
caused by the addition of the new
investment subadvisor. To meet this
condition, the Funds will provide
shareholders with an information
statement meeting the requirements of
Regulation 14C, Schedule 14C, and Item
22 of Schedule 14A under the Securities
Exchange Act of 1934.
4. Each Fund will disclose in its
prospectus the existence, substance, and
effect of any order granted pursuant to
the application. In addition, each Fund
will hold itself out to the public as
employing the Management Structure
described in the application. The
prospectus will prominently disclose
that the Adviser has ultimate
responsibility (subject to oversight by
the Board) to oversee investment
subadvisors and recommend their
hiring, termination and replacement.
5. No trustee or officer of any Fund,
or director or officer of the Adviser will
own directly or indirectly (other than
through a pooled investment vehicle
that is not controlled by any such
director, trustee, or officer) any interest
in an investment subadvisor except for:
(i) Ownership of interests in the Adviser
or any entity that controls, is controlled
by, or under common control with the
Adviser; or (ii) ownership of less than
1% of the outstanding securities of any
class of equity or debt securities of any
publicly-traded company that is either
an investment subadvisor or an entity
that controls, is controlled by or is
under common control with an
investment subadvisor.
6. The Adviser will not enter into
investment subadvisory agreements on
behalf of a Fund with any affiliated
investment subadvisor without such
agreement, including the compensation
to be paid under the agreement, being
approved by the shareholders of the
applicable Fund.
7. At all times, at least a majority of
the Board will be Independent Trustees,
and the nomination of new or additional
Independent Trustees will be placed
within the discretion of the thenexisting Independent Trustees.
8. When a change of investment
subadvisor is proposed for a Fund with
an affiliated investment subadvisor, the
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14:58 Nov 27, 2009
Jkt 220001
Board, including a majority of the
Independent Trustees, will make a
separate finding, reflected in the
minutes of meetings of the Board, that
any such change of investment
subadvisors is in the best interest of the
Fund and its shareholders and does not
involve a conflict of interest from which
the Adviser or the affiliated investment
subadvisor derives an inappropriate
advantage.
9. In the event the Commission adopts
a rule under the Act providing
substantially similar relief to that in the
requested order, the requested order
will expire on the effective date of that
rule.
lack of current and accurate information
concerning the securities of USA
Biomass Corp. because it has not filed
any periodic reports since the period
ended December 31, 2002.
The Commission is of the opinion that
the public interest and the protection of
investors require a suspension of trading
in the securities of the above-listed
companies. Therefore, it is ordered,
pursuant to Section 12(k) of the
Securities Exchange Act of 1934, that
trading in the securities of the abovelisted companies is suspended for the
period from 9:30 a.m. EST on November
25, 2009, through 11:59 p.m. EST on
December 9, 2009.
For the Commission, by the Division of
Investment Management, under delegated
authority.
Elizabeth M. Murphy,
Secretary.
[FR Doc. E9–28560 Filed 11–27–09; 8:45 am]
By the Commission.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. E9–28639 Filed 11–25–09; 11:15
am]
BILLING CODE 8011–01–P
BILLING CODE P
SECURITIES AND EXCHANGE
COMMISSION
SECURITIES AND EXCHANGE
COMMISSION
[File No. 500–1]
[Release No. 34–61043; File No. SR–NYSE–
2009–116]
In the Matter of Customer Sports, Inc.,
Leonidas Films, Inc. (n/k/a
Consolidated Pictures Group, Inc.),
Sportsprize Entertainment, Inc., U.S.
Interactive, Inc., and USA Biomass
Corp.; Order of Suspension of Trading
Self-Regulatory Organizations; New
York Stock Exchange LLC; Notice of
Filing of Proposed Rule Change to
Increase the Ceiling on Its Equity
Ownership Interest in BIDS Holdings
L.P. to Less Than 10%
November 25, 2009.
November 20, 2009.
It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
concerning the securities of Customer
Sports, Inc. because it has not filed any
periodic reports since the period ended
April 30, 2000.
It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
concerning the securities of Leonidas
Films, Inc. (n/k/a Consolidated Pictures
Group, Inc.) because it has not filed any
periodic reports since the period ended
March 31, 2001.
It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
concerning the securities of Sportsprize
Entertainment, Inc. because it has not
filed any periodic reports since the
period ended August 31, 2000.
It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
concerning the securities of U.S.
Interactive, Inc. because it has not filed
any periodic reports since the period
ended September 30, 2000.
It appears to the Securities and
Exchange Commission that there is a
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
November 18, 2009, New York Stock
Exchange LLC (‘‘NYSE’’ or the
‘‘Exchange’’) filed with the Securities
and Exchange Commission (the
‘‘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 comments on the proposed rule
change from interested persons.
PO 00000
Frm 00061
Fmt 4703
Sfmt 4703
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to increase
the ceiling on the Exchange’s equity
ownership interest in BIDS Holdings
L.P. (‘‘BIDS’’), a member of the
Exchange, to less than 10% from the
current level of less than 9%, pursuant
to the pilot program that provides an
exception to NYSE Rule 2B by
permitting such equity ownership as
1 15
2 17
U.S.C. 78s(b)(1).
CFR 240.19b–4.
E:\FR\FM\30NON1.SGM
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Federal Register / Vol. 74, No. 228 / Monday, November 30, 2009 / Notices
well as allowing BIDS’s affiliation with
the New York Block Exchange LLC, an
affiliate of the Exchange.
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
self-regulatory organization 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 those 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 the
Statutory Basis for, the Proposed Rule
Change
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
1. Purpose
On January 22, 2009, the Commission
approved the governance structure
proposed by the Exchange with respect
to the New York Block Exchange
(‘‘NYBX’’), a new electronic trading
facility of the Exchange for NYSE-listed
securities that was established by means
of a joint venture between the Exchange
and BIDS.3 The governance structure
that was approved is reflected in the
Limited Liability Company Agreement
of New York Block Exchange LLC (the
‘‘Company’’), the entity that owns and
operates NYBX. Under the governance
structure approved by the Commission,
the Exchange and BIDS each own a 50%
economic interest in the Company. In
addition, the Exchange, through its
wholly-owned subsidiary NYSE Market,
Inc. (‘‘NYSE Market’’), owns less than
9% of the aggregate limited partnership
interest in BIDS, which became a
member of the Exchange in connection
with the establishment of NYBX.
The foregoing ownership
arrangements would violate NYSE Rule
2B without an exception from the
Commission.4 First, the Exchange’s
indirect ownership interest in BIDS
violates the prohibition in Rule 2B
3 See Securities Exchange Act Release No. 59281
(January 22, 2009), 74 FR 5014 (January 28, 2009)
(order approving SR–NYSE–2008–120) (‘‘Approval
Order’’).
4 NYSE Rule 2B provides, in relevant part, that:
‘‘[w]ithout prior SEC approval, the Exchange or any
entity with which it is affiliated shall not, directly
or indirectly, acquire or maintain an ownership
interest in a member organization. In addition, a
member organization shall not be or become an
affiliate of the Exchange, or an affiliate of any
affiliate of the Exchange. * * * The term affiliate
shall have the meaning specified in Rule 12b–2
under the Act.’’
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14:58 Nov 27, 2009
Jkt 220001
against the Exchange maintaining an
ownership interest in a member
organization. Second, BIDS is an
affiliate of an affiliate of the Exchange,5
which violates the prohibition in Rule
2B against a member of the Exchange
having such status. Consequently, in the
Approval Order, the Commission
permitted an exception to these two
potential violations of NYSE Rule 2B,
subject to a number of limitations and
conditions. One of the conditions for
Commission approval was that: ‘‘[t]he
proposed exception from NYSE Rule 2B
to permit NYSE’s ownership/interest in
BIDS and BIDS’s affiliation with the
Company (which is an affiliate of NYSE)
would be for a pilot period of 12
months.’’ 6 Noting that ‘‘NYSE Market
currently owns less than a 9% equity
interest in BIDS,’’ the Approval Order
stated as another condition for
Commission approval that: ‘‘NYSE, or
any of its affiliates, may not directly or
indirectly increase such equity interest
without prior Commission approval.’’ 7
The Exchange is proposing an
increase in the ceiling on its equity
ownership in BIDS from the current
limit of less than 9% to a new limit of
less than 10%. The purpose of the
increase is to allow the Exchange to
participate in a new round of capital
raising by BIDS without inadvertently
exceeding the current limit. BIDS is
offering its members the opportunity to
invest, on a pro rata basis, in a new class
of preferred equity interests. The
Exchange has determined that, based on
its expectations regarding the
participation of certain other BIDS
members in the offering, full
participation by the Exchange could
result in a slight increase in its
percentage of equity ownership to a
number somewhere between 9% and
10%. The Exchange does not believe
that this slight increase in its equity
ownership of BIDS is material, but it is
nonetheless required by the terms of the
Approval Order to obtain Commission
approval for such an increase. Other
than this non-material increase in the
ceiling for the Exchange’s equity
ownership of BIDS, all of the other
limitations and conditions required by
the terms of the Approval Order for the
exception to NYSE Rule 2B will
continue to be applicable during the
pilot period.8
5 Specifically, the Company is an affiliate of the
Exchange, and BIDS is an affiliate of the Company.
The affiliation in each case is the result of the 50%
ownership interest in the Company by each of the
Exchange and BIDS.
6 See Approval Order, 74 FR at 5018.
7 Id.
8 Id.
PO 00000
Frm 00062
Fmt 4703
Sfmt 4703
62613
2. Statutory Basis
The proposed rule change is
consistent with Section 6(b) 9 of the
Act,10 in general, and furthers the
objectives of Section 6(b)(1) 11 of the
Act, which requires a national securities
exchange to be so organized and have
the capacity to carry out the purposes of
the Act and to comply, and to enforce
compliance by its members and persons
associated with its members, with the
provisions of the Act. The proposed rule
change is also consistent with, and
furthers the objectives of Section
6(b)(5) 12 of the Act, in that it 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
facilitating transactions in securities, to
remove impediments to and perfect the
mechanisms of a free and open market
and a national market system and, in
general, to protect investors and the
public interest.
In the Approval Order, the
Commission determined that: ‘‘the
proposed exception from NYSE Rule 2B
to permit NYSE’s ownership interest in
BIDS and BIDS’s affiliation with the
Company is consistent with the Act. In
particular, the Commission finds that
the proposal is consistent with Section
6(b)(5) of the Act * * * ’’ 13 As the basis
for its determination, the Commission
cited the specific limitations and
conditions listed in the Approval Order
to which its approval of the exception
to NYSE Rule 2B was subject,14 stating:
‘‘These conditions appear reasonably
designed to mitigate concerns about
potential conflicts of interest and unfair
competitive advantage. * * * These
conditions appear reasonably designed
to promote robust and independent
regulation of BIDS. * * * The
Commission believes that, taken
together, these conditions are
reasonably designed to mitigate
potential conflicts between the
Exchange’s commercial interest in BIDS
and its regulatory responsibilities with
respect to BIDS.’’ 15 Other than the
small, non-material increase of one
percentage point in the ceiling on its
equity ownership of BIDS that the
Exchange is proposing, all of the other
limitations and conditions will continue
to be applicable during the pilot
9 15
U.S.C. 78f(b).
U.S.C. 78.
11 15 U.S.C. 78f(b)(1).
12 15 U.S.C. 78f(b)(5).
13 See Approval Order, 74 FR at 5018–5019.
14 Id. at 5018.
15 Id. at 5019.
10 15
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Federal Register / Vol. 74, No. 228 / Monday, November 30, 2009 / Notices
period.16 Consequently, the Exchange
believes that the exception from NYSE
Rule 2B described above will continue
to be consistent with the Act.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
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
No written comments were solicited
or received with respect to the proposed
rule change.
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
longer period to be appropriate and
publishes its reasons for so finding or
(ii) as to which the self-regulatory
organization consents, the Commission
will:
(A) By order approve the 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:
WReier-Aviles on DSKGBLS3C1PROD 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–NYSE–2009–116 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.
16 The Exchange has previously stated that it and
its affiliates do not have any voting or other control
arrangement with any of the other limited partners
or general partner of BIDS, and this statement will
continue to be valid. See Approval Order, 74 FR at
5018, n. 69.
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14:58 Nov 27, 2009
Jkt 220001
All submissions should refer to File
Number SR–NYSE–2009–116. 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
Section, 100 F Street, NE., Washington,
DC 20549–1090, on official business
days between the hours of 10 a.m. and
3 p.m. Copies of the 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
Number SR–NYSE–2009–116 and
should be submitted on or before
December 21, 2009.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.17
Elizabeth M. Murphy,
Secretary.
[FR Doc. E9–28470 Filed 11–27–09; 8:45 am]
BILLING CODE 8011–01–P
[Release No. 34–61033; File No. SR–
NYSEArca–2009–100]
Self-Regulatory Organizations; Notice
of Filing and Immediate Effectiveness
of Proposed Rule Change by NYSE
Arca, Inc. Amending Rules 5.17 and 6.8
November 19, 2009.
Pursuant to Section 19(b)(1) 1 of the
Securities Exchange Act of 1934 (the
‘‘Act’’) 2 and Rule 19b–4 thereunder,3
notice is hereby given that, on
November 5, 2009, NYSE Arca, Inc.
17 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 15 U.S.C. 78a.
3 17 CFR 240.19b–4.
1 15
Frm 00063
Fmt 4703
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to amend
Exchange Rules 5.17 and 6.8 pertaining
to Exemptions from Position Limits. The
text of the proposed rule change is
attached as Exhibit 5 to the 19b–4 form.
A copy of this filing is available on the
Exchange’s Web site at https://
www.nyse.com, at the Exchange’s
principal office and at the Commission’s
Public Reference Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
self-regulatory organization 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 those 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 the
Statutory Basis for, the Proposed Rule
Change
1. Purpose
SECURITIES AND EXCHANGE
COMMISSION
PO 00000
(‘‘NYSE Arca’’ or the ‘‘Exchange’’) filed
with the Securities and Exchange
Commission (‘‘Commission’’) the
proposed rule change as described in
Items I and II below, which Items have
been prepared by the self-regulatory
organization. The Commission is
publishing this notice to solicit
comments on the proposed rule change
from interested persons.
Sfmt 4703
The purpose of the proposed rule
change is to amend NYSE Arca Rules
5.17 and 6.8 to enable OTP Holders and
OTP Firms to rely on position limit
exemptions granted by other options
exchanges under specified
circumstances. This proposed rule
change is based on Chapter III, Section
8 and Chapter XIV Section 8, of Options
Rules of the NASDAQ Stock Market,
LLC (‘‘NOM’’).
NYSE Arca rules governing position
limit exemptions for stock index options
are generally found in Rule 5.17. NYSE
Arca rules governing position limit
exemptions for non-index options are
generally located in Rule 6.8,
Commentary .07–.09. These rules
include a number of position limit
exemptions available to OTP Holders
and OTP Firms. Rules 5.17 and 6.8,
E:\FR\FM\30NON1.SGM
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]]>Agencies
[Federal Register Volume 74, Number 228 (Monday, November 30, 2009)]
[Notices]
[Pages 62612-62614]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28470]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-61043; File No. SR-NYSE-2009-116]
Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing of Proposed Rule Change to Increase the Ceiling on Its
Equity Ownership Interest in BIDS Holdings L.P. to Less Than 10%
November 20, 2009.
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 November 18, 2009, New York Stock Exchange LLC (``NYSE'' or
the ``Exchange'') filed with the Securities and Exchange Commission
(the ``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 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 Substance
of the Proposed Rule Change
The Exchange proposes to increase the ceiling on the Exchange's
equity ownership interest in BIDS Holdings L.P. (``BIDS''), a member of
the Exchange, to less than 10% from the current level of less than 9%,
pursuant to the pilot program that provides an exception to NYSE Rule
2B by permitting such equity ownership as
[[Page 62613]]
well as allowing BIDS's affiliation with the New York Block Exchange
LLC, an affiliate of the Exchange.
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 self-regulatory organization
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 those 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 the
Statutory Basis for, the Proposed Rule Change
1. Purpose
On January 22, 2009, the Commission approved the governance
structure proposed by the Exchange with respect to the New York Block
Exchange (``NYBX''), a new electronic trading facility of the Exchange
for NYSE-listed securities that was established by means of a joint
venture between the Exchange and BIDS.\3\ The governance structure that
was approved is reflected in the Limited Liability Company Agreement of
New York Block Exchange LLC (the ``Company''), the entity that owns and
operates NYBX. Under the governance structure approved by the
Commission, the Exchange and BIDS each own a 50% economic interest in
the Company. In addition, the Exchange, through its wholly-owned
subsidiary NYSE Market, Inc. (``NYSE Market''), owns less than 9% of
the aggregate limited partnership interest in BIDS, which became a
member of the Exchange in connection with the establishment of NYBX.
---------------------------------------------------------------------------
\3\ See Securities Exchange Act Release No. 59281 (January 22,
2009), 74 FR 5014 (January 28, 2009) (order approving SR-NYSE-2008-
120) (``Approval Order'').
---------------------------------------------------------------------------
The foregoing ownership arrangements would violate NYSE Rule 2B
without an exception from the Commission.\4\ First, the Exchange's
indirect ownership interest in BIDS violates the prohibition in Rule 2B
against the Exchange maintaining an ownership interest in a member
organization. Second, BIDS is an affiliate of an affiliate of the
Exchange,\5\ which violates the prohibition in Rule 2B against a member
of the Exchange having such status. Consequently, in the Approval
Order, the Commission permitted an exception to these two potential
violations of NYSE Rule 2B, subject to a number of limitations and
conditions. One of the conditions for Commission approval was that:
``[t]he proposed exception from NYSE Rule 2B to permit NYSE's
ownership/interest in BIDS and BIDS's affiliation with the Company
(which is an affiliate of NYSE) would be for a pilot period of 12
months.'' \6\ Noting that ``NYSE Market currently owns less than a 9%
equity interest in BIDS,'' the Approval Order stated as another
condition for Commission approval that: ``NYSE, or any of its
affiliates, may not directly or indirectly increase such equity
interest without prior Commission approval.'' \7\
---------------------------------------------------------------------------
\4\ NYSE Rule 2B provides, in relevant part, that: ``[w]ithout
prior SEC approval, the Exchange or any entity with which it is
affiliated shall not, directly or indirectly, acquire or maintain an
ownership interest in a member organization. In addition, a member
organization shall not be or become an affiliate of the Exchange, or
an affiliate of any affiliate of the Exchange. * * * The term
affiliate shall have the meaning specified in Rule 12b-2 under the
Act.''
\5\ Specifically, the Company is an affiliate of the Exchange,
and BIDS is an affiliate of the Company. The affiliation in each
case is the result of the 50% ownership interest in the Company by
each of the Exchange and BIDS.
\6\ See Approval Order, 74 FR at 5018.
\7\ Id.
---------------------------------------------------------------------------
The Exchange is proposing an increase in the ceiling on its equity
ownership in BIDS from the current limit of less than 9% to a new limit
of less than 10%. The purpose of the increase is to allow the Exchange
to participate in a new round of capital raising by BIDS without
inadvertently exceeding the current limit. BIDS is offering its members
the opportunity to invest, on a pro rata basis, in a new class of
preferred equity interests. The Exchange has determined that, based on
its expectations regarding the participation of certain other BIDS
members in the offering, full participation by the Exchange could
result in a slight increase in its percentage of equity ownership to a
number somewhere between 9% and 10%. The Exchange does not believe that
this slight increase in its equity ownership of BIDS is material, but
it is nonetheless required by the terms of the Approval Order to obtain
Commission approval for such an increase. Other than this non-material
increase in the ceiling for the Exchange's equity ownership of BIDS,
all of the other limitations and conditions required by the terms of
the Approval Order for the exception to NYSE Rule 2B will continue to
be applicable during the pilot period.\8\
---------------------------------------------------------------------------
\8\ Id.
---------------------------------------------------------------------------
2. Statutory Basis
The proposed rule change is consistent with Section 6(b) \9\ of the
Act,\10\ in general, and furthers the objectives of Section 6(b)(1)
\11\ of the Act, which requires a national securities exchange to be so
organized and have the capacity to carry out the purposes of the Act
and to comply, and to enforce compliance by its members and persons
associated with its members, with the provisions of the Act. The
proposed rule change is also consistent with, and furthers the
objectives of Section 6(b)(5) \12\ of the Act, in that it 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 facilitating transactions in
securities, to remove impediments to and perfect the mechanisms 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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\9\ 15 U.S.C. 78f(b).
\10\ 15 U.S.C. 78.
\11\ 15 U.S.C. 78f(b)(1).
\12\ 15 U.S.C. 78f(b)(5).
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In the Approval Order, the Commission determined that: ``the
proposed exception from NYSE Rule 2B to permit NYSE's ownership
interest in BIDS and BIDS's affiliation with the Company is consistent
with the Act. In particular, the Commission finds that the proposal is
consistent with Section 6(b)(5) of the Act * * * '' \13\ As the basis
for its determination, the Commission cited the specific limitations
and conditions listed in the Approval Order to which its approval of
the exception to NYSE Rule 2B was subject,\14\ stating: ``These
conditions appear reasonably designed to mitigate concerns about
potential conflicts of interest and unfair competitive advantage. * * *
These conditions appear reasonably designed to promote robust and
independent regulation of BIDS. * * * The Commission believes that,
taken together, these conditions are reasonably designed to mitigate
potential conflicts between the Exchange's commercial interest in BIDS
and its regulatory responsibilities with respect to BIDS.'' \15\ Other
than the small, non-material increase of one percentage point in the
ceiling on its equity ownership of BIDS that the Exchange is proposing,
all of the other limitations and conditions will continue to be
applicable during the pilot
[[Page 62614]]
period.\16\ Consequently, the Exchange believes that the exception from
NYSE Rule 2B described above will continue to be consistent with the
Act.
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\13\ See Approval Order, 74 FR at 5018-5019.
\14\ Id. at 5018.
\15\ Id. at 5019.
\16\ The Exchange has previously stated that it and its
affiliates do not have any voting or other control arrangement with
any of the other limited partners or general partner of BIDS, and
this statement will continue to be valid. See Approval Order, 74 FR
at 5018, n. 69.
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B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose 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
No written comments were solicited or received with respect to the
proposed rule change.
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 longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
(A) By order approve the 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-NYSE-2009-116 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-NYSE-2009-116. 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 Section, 100 F Street,
NE., Washington, DC 20549-1090, on official business days between the
hours of 10 a.m. and 3 p.m. Copies of the 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 Number SR-NYSE-2009-116 and should be
submitted on or before December 21, 2009.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\17\
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\17\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. E9-28470 Filed 11-27-09; 8:45 am]
BILLING CODE 8011-01-P
