Sunshine Act Meeting, 57312-57313 [2010-23523]

Download as PDF 57312 Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Notices jdjones on DSK8KYBLC1PROD with NOTICES for cause, the options may be exercised within one year immediately following the date of termination, but in no event later than the expiration date of such options. 5. Applicant’s officers and employees are eligible or have been eligible to receive options under stock option plans that exclude Non-employee Directors as participants (the ‘‘Employee Plans’’), applicant’s 2006 stock option plan (the ‘‘2006 Option Plan’’), applicant’s 2007 stock option plan (the ‘‘2007 Option Plan’’), and applicant’s 2008 stock option plan (the ‘‘2008 Option Plan’’). Non-employee Directors have been eligible to receive options under applicant’s two Disinterested Director stock option plans (the ‘‘Disinterested Director Plans’’), the 2006 Option Plan, the 2007 Option Plan and the 2008 Option Plan (collectively, the 2008 Option Plan, the 2007 Option Plan, the 2006 Option Plan, the Disinterested Director Plans and the Employee Plans are the ‘‘Other Plans’’). As of August 18, 2010, applicant had 350,309,123 shares of common stock outstanding.5 The 750,000 shares of applicant’s common stock that may be issued to Nonemployee Directors under the Plan represent 0.2% of applicant’s outstanding voting securities as of August 18, 2010. As of August 18, 2010, the amount of voting securities that would result from the exercise of all outstanding options issued to applicant’s directors, officers, and employees under the Other Plans and the Plan would be 33,553,256 shares of applicant’s common stock, or 9.5% of applicant’s outstanding voting securities. As of August 18, 2010, applicant had no outstanding warrants, options, or rights to purchase its voting securities other than the outstanding options issued to applicant’s directors, officers, and employees under the Other Plans and the Plan. Applicant’s Legal Analysis 1. Section 63(3) of the Act permits a BDC to sell its common stock at a price below current NAV upon the exercise of any option issued in accordance with section 61(a)(3). Section 61(a)(3)(B) provides, in pertinent part, that a BDC may issue to its non-employee directors options to purchase its voting securities pursuant to an executive compensation plan, provided that: (a) The options expire by their terms within ten years; (b) the exercise price of the options is not less than the current market value of the underlying voting securities at the date of the issuance of the options, or if 5 Applicant’s common stock constitutes the only voting security of applicant currently outstanding. VerDate Mar<15>2010 15:00 Sep 17, 2010 Jkt 220001 no market value exists, the current NAV of the underlying voting securities; (c) the proposal to issue the options is authorized by the BDC’s shareholders, and is approved by order of the Commission upon application; (d) the options are not transferable except for disposition by gift, will or intestacy; (e) no investment adviser of the BDC receives any compensation described in section 205(a)(1) of the Investment Advisers Act of 1940, except to the extent permitted by clause (b)(1) or (b)(2) of that section; and (f) the BDC does not have a profit-sharing plan as described in section 57(n) of the Act. 2. In addition, section 61(a)(3) provides that the amount of the BDC’s voting securities that would result from the exercise of all outstanding warrants, options, and rights at the time of issuance may not exceed 25% of the BDC’s outstanding voting securities, except that if the amount of voting securities that would result from the exercise of all outstanding warrants, options, and rights issued to the BDC’s directors, officers, and employees pursuant to any executive compensation plan would exceed 15% of the BDC’s outstanding voting securities, then the total amount of voting securities that would result from the exercise of all outstanding warrants, options, and rights at the time of issuance will not exceed 20% of the outstanding voting securities of the BDC. 3. Applicant represents that its proposal to grant certain stock options to Non-employee Directors under the Plan meets all the requirements of section 61(a)(3)(B). Applicant states that the Board is actively involved in the oversight of applicant’s affairs and that it relies extensively on the judgment and experience of its Board. In addition to their duties as Board members generally, applicant states that the Nonemployee Directors provide guidance and advice on operational issues, underwriting policies, credit policies, asset valuation and strategic direction, as well as serving on committees. Applicant believes that the availability of options under the Plan will provide significant at-risk incentives to Nonemployee Directors to remain on the Board and devote their best efforts to ensure applicant’s success. Applicant states that the options will provide a means for the Non-employee Directors to increase their ownership interests in applicant, thereby ensuring close identification of their interests with those of applicant and its stockholders. Applicant asserts that by providing incentives such as options, applicant will be better able to maintain continuity in the Board’s membership PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 and to attract and retain the highly experienced, successful and dedicated business and professional people who are critical to applicant’s success as a BDC. 4. As noted above, applicant states that the amount of voting securities that would result from the exercise of all outstanding options issued to applicant’s directors, officers, and employees under the Other Plans and the Plan would be 33,553,256 shares of applicant’s common stock, or 9.5% of applicant’s outstanding voting securities, as of August 18, 2010. However, applicant represents that the maximum number of voting securities that would result from the exercise of all outstanding options issued and all options issuable to applicant’s directors, officers, and employees under the Plan and the Other Plans would be 70,981,813 shares of applicant’s common stock, or 20.2% of applicant’s outstanding voting securities, as of August 18, 2010. Applicant states that to the extent the number of shares of common stock that would be issued upon the exercise of options issued under the Other Plans and the Plan exceeds 15% of applicant’s outstanding voting securities, applicant will comply with the 20% limit in section 61(a)(3) of the Act. 5. Applicant asserts that, given the relatively small amount of common stock issuable to Non-employee Directors upon their exercise of options under the Plan, the exercise of such options would not, absent extraordinary circumstances, have a substantial dilutive effect on the NAV of applicant’s common stock. For the Commission, by the Division of Investment Management, pursuant to delegated authority. Florence E. Harmon, Deputy Secretary. [FR Doc. 2010–23408 Filed 9–17–10; 8:45 am] BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION Sunshine Act Meeting Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, September 23, 2010 at 2 p.m. Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain E:\FR\FM\20SEN1.SGM 20SEN1 Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Notices staff members who have an interest in the matters also may be present. The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting. Commissioner Aguilar, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session. The subject matter of the Closed Meeting scheduled for Thursday, September 23, 2010 will be: Institution and settlement of injunctive actions; Institution and settlement of administrative proceedings; and Other matters relating to enforcement proceedings. At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact: The Office of the Secretary at (202) 551–5400. Dated: September 16, 2010. Elizabeth M. Murphy, Secretary. [FR Doc. 2010–23523 Filed 9–16–10; 4:15 pm] SECURITIES AND EXCHANGE COMMISSION Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Waiver of Transaction Fee for Public Customer Orders in SPDR Options Executed in Open Outcry or in the Automated Improvement Mechanism jdjones on DSK8KYBLC1PROD with NOTICES September 14, 2010. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934, 15 U.S.C. 78s(b)(1), notice is hereby given that on September 3, 2010, Chicago Board Options Exchange, Incorporated (‘‘CBOE’’ 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 CBOE. The Commission is publishing this notice to Jkt 220001 Chicago Board Options Exchange, Incorporated (‘‘CBOE’’ or ‘‘Exchange’’) proposes to amend its Fees Schedule to waive the transaction fee for public customer orders in options on Standard & Poor’s Depositary Receipts that are executed in open outcry or in the Automated Improvement Mechanism. The text of the proposed rule change is available on the Exchange’s Web site (https://www.cboe.org/legal), at the Exchange’s Office of the Secretary and at the Commission. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, CBOE 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. CBOE has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements. 1. Purpose [Release No. 34–62902; File No. SR–CBOE– 2010–081] 15:00 Sep 17, 2010 I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change A. Self-Regulatory Organization’s Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change BILLING CODE 8010–01–P VerDate Mar<15>2010 solicit comments on the proposed rule change from interested persons. Public customer (‘‘C’’ origin code) orders in options on Standard & Poor’s Depositary Receipts (‘‘SPDR options’’) are charged a transaction fee of $.18 per contract, except for orders of 99 contracts or less.1 The Exchange proposes to amend its Fees Schedule to waive the transaction fee for public customer orders in SPDR options that are executed in open outcry or in the Automated Improvement Mechanism (‘‘AIM’’) 2, effective September 7, 2010 through November 30, 2010. The proposed fee waiver is intended to attract more customer volume on the Exchange in this product. 1 Transaction fees are currently waived for customer orders of 99 contracts or less in ETF, ETN and HOLDRs options. See CBOE Fees Schedule, footnote 9. 2 AIM is an electronic auction system that exposes certain orders electronically in an auction to provide such orders with the opportunity to receive an execution at an improved price. AIM is governed by CBOE Rule 6.74A. PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 57313 2. Statutory Basis The Exchange believes the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (‘‘Act’’) 3, in general, and furthers the objectives of Section 6(b)(4) 4 of the Act in particular, in that it is designed to provide for the equitable allocation of reasonable dues, fees, and other charges among its members and other persons using its facilities. The Exchange believes the proposed fee waiver is reasonable because it would result in cost savings during the waiver period for public customers trading SPDR options and is consistent with other fees assessed by the Exchange. The Exchange assesses manually executed brokerdealer orders a different rate ($.25 per contract) as compared to electronically executed broker-dealer orders ($.45 per contract), and a different rate ($.20 per contract) for broker-dealer orders executed on AIM as compared to other electronic executions and manual executions of broker-dealer orders.5 Other exchange fee schedules also distinguish between electronically and non-electronically executed orders.6 The Exchange believes the proposed fee waiver is equitable because it would apply uniformly to all public customers trading SPDR options. B. Self-Regulatory Organization’s Statement on Burden on Competition CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of 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. 3 15 U.S.C. 78f(b). U.S.C. 78f(b)(4). 5 See CBOE Fees Schedule, Section 1. 6 NASDAQ OMX PHLX, Inc. categorizes its equity options transaction fees for Specialists, ROTs, SQTs, RSQTs and Broker-Dealers as either electronic or non-electronic. See NASDAQ OMX PHLX Fees Schedule, Equity Options Fees. NYSE Amex, Inc. categorizes its options transaction fees for Non-NYSE Amex Options Market Makers, Broker-Dealers, Professional Customers, Non BD Customers and Firms as either electronic or manual. See NYSE Amex Fees Schedule, Trade Related Charges. NYSE Arca, Inc. categorizes its options transaction fees for Customers, Firms and BrokerDealers as either electronic or manual. See NYSE Arca Fees Schedule, Trade Related Charges. 4 15 E:\FR\FM\20SEN1.SGM 20SEN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 75, Number 181 (Monday, September 20, 2010)]
[Notices]
[Pages 57312-57313]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-23523]


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SECURITIES AND EXCHANGE COMMISSION


Sunshine Act Meeting

    Notice is hereby given, pursuant to the provisions of the 
Government in the Sunshine Act, Public Law 94-409, that the Securities 
and Exchange Commission will hold a Closed Meeting on Thursday, 
September 23, 2010 at 2 p.m.
    Commissioners, Counsel to the Commissioners, the Secretary to the 
Commission, and recording secretaries will attend the Closed Meeting. 
Certain

[[Page 57313]]

staff members who have an interest in the matters also may be present.
    The General Counsel of the Commission, or his designee, has 
certified that, in his opinion, one or more of the exemptions set forth 
in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 
200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the 
scheduled matters at the Closed Meeting.
    Commissioner Aguilar, as duty officer, voted to consider the items 
listed for the Closed Meeting in a closed session.
    The subject matter of the Closed Meeting scheduled for Thursday, 
September 23, 2010 will be:

Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings; and
Other matters relating to enforcement proceedings.

    At times, changes in Commission priorities require alterations in 
the scheduling of meeting items.
    For further information and to ascertain what, if any, matters have 
been added, deleted or postponed, please contact:
    The Office of the Secretary at (202) 551-5400.

    Dated: September 16, 2010.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010-23523 Filed 9-16-10; 4:15 pm]
BILLING CODE 8010-01-P

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