[Federal Register Volume 74, Number 43 (Friday, March 6, 2009)]
[Notices]
[Pages 9841-9843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4756]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59460; File Nos. SR-NASDAQ-2009-010, SR-BX-2009-009, 
SR-Phlx-2009-14]


Self-Regulatory Organizations; the NASDAQ Stock Market, LLC; 
NASDAQ OMX BX, Inc.; NASDAQ OMX Phlx, Inc.; Notice of Filing and 
Immediate Effectiveness of Proposed Rule Changes To Amend the 
Certificate of Incorporation of The NASDAQ OMX Group, Inc.

February 26, 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 17, 2009, The NASDAQ Stock Market, LLC (``NASDAQ 
Exchange'') and NASDAQ OMX BX, Inc. (``BX''), and on February 20, 2009, 
NASDAQ OMX Phlx, Inc. (``PHLX'') (collectively, the ``NASDAQ OMX 
Exchange Subsidiaries'') \3\ filed with the Securities and Exchange 
Commission (``Commission'') the proposed rule changes as described in 
Items I, II, and III below, which Items have been substantially 
prepared by the NASDAQ OMX Exchange Subsidiaries. The Commission is 
publishing this notice to solicit comments on the proposed rule changes 
from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Substantially similar filings have been submitted by Boston 
Stock Exchange Clearing Corporation (``BSECC'') (SR-BSECC-2009-001) 
and Stock Clearing Corporation of Philadelphia (``SCCP'') (SR-SCCP-
2009-01), the clearing corporation subsidiaries of NASDAQ OMX Group, 
Inc. (``NASDAQ OMX'').
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The NASDAQ OMX Exchange Subsidiaries are filing the proposed rule 
changes with regard to proposed changes to the Restated Certificate of

[[Page 9842]]

Incorporation (the ``Certificate'') of their parent corporation, NASDAQ 
OMX. The proposed rule changes will be implemented as soon as 
practicable following filing with the Commission. The text of the 
proposed rule changes is available at http://www.cchwallstreet.com/nasdaqomx/ com/
nasdaqomx/, http://www.nasdaqtrader.com/Trader.aspx?id=BSEIERules2009, and http://www.nasdaqtrader.com/Micro.aspx?id=PhlxApprovedRulefilings Rulefilings, respectively.

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

    In their filings with the Commission, each of the NASDAQ OMX 
Exchange Subsidiaries included statements concerning the purpose of and 
basis for its proposed rule change and discussed any comments it 
received on its proposed rule change. The text of these statements may 
be examined at the places specified in Item IV below. Each of the 
NASDAQ OMX Exchange Subsidiaries 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
    NASDAQ OMX is proposing to make amendments to its Certificate. As 
provided in Articles XI and XII of the NASDAQ OMX By-Laws, proposed 
amendments to the Certificate are to be reviewed by the Board of 
Directors of each self-regulatory subsidiary of NASDAQ OMX, 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. The governing boards 
of the NASDAQ Exchange, PHLX, BX, BSECC, and SCCP have each reviewed 
the proposed change and determined that they should be filed with the 
Commission.\4\ The NASDAQ OMX Exchange Subsidiaries state that the 
changes to the Certificate are limited in scope, and under Delaware 
law, they do not require approval by the stockholders of NASDAQ OMX.
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    \4\ The NASDAQ Exchange, PHLX, BX, BSECC, and SCCP are each 
submitting a filing pursuant to Section 19(b)(3)(A)(iii) of the Act, 
15 U.S.C. 78s(b)(3)(A)(iii).
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    Specifically, NASDAQ OMX proposes to eliminate its Certificate of 
Designations, Preferences and Rights of Series D Preferred Stock, and 
all matters set forth therein. NASDAQ OMX's Series D Stock was created 
in 2005 for the purpose of allowing National Association of Securities 
Dealers, Inc. to retain voting control over NASDAQ OMX's predecessor, 
The Nasdaq Stock Market, Inc. In connection with the NASDAQ Exchange 
commencing operations as a national securities exchange, the sole share 
of Series D Stock was redeemed in December 2006. Under Delaware law, 
both a certificate of designations (designating a series of preferred 
stock) and a certificate of elimination (eliminating a previously 
adopted designation) are deemed to be amendments to NASDAQ OMX's 
Certificate.
2. Statutory Basis
    The NASDAQ OMX Exchange Subsidiaries believe that their respective 
proposed rule changes are 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 NASDAQ OMX 
Exchange 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 members and persons associated with members with 
provisions of the Act, the rules and regulations thereunder, and self-
regulatory organization 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. The proposed changes will 
enhance the clarity of NASDAQ OMX's governance documents by eliminating 
provisions relating to a series of preferred stock that is no longer 
outstanding.
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    \5\ 15 U.S.C. 78f.
    \6\ 15 U.S.C. 78f(b)(1), (5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The NASDAQ OMX Exchange Subsidiaries do not believe that the 
proposed rule changes 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

    The foregoing rule changes have become effective pursuant to 
Section 19(b)(3)(A)(iii) of the Act \7\ and subparagraph (f)(3) of Rule 
19b-4 thereunder.\8\ At any time within 60 days of the filing of the 
respective proposed rule change by the applicable NASDAQ OMX Exchange 
Subsidiary, the Commission may summarily abrogate such rule changes 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.
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    \7\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \8\ 17 CFR 240.19b-4(f)(3).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
changes, are consistent with the Act. Comments may be submitted by any 
of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml) or
     Send an e-mail to [email protected]. Please include 
File Nos. SR-NASDAQ-2009-010, SR-BX-2009-009, and SR-Phlx-2009-14 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 Nos. SR-NASDAQ-2009-010, SR-BX-
2009-009, and SR-Phlx-2009-14. These file numbers 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 (http://www.sec.gov/rules/sro.shtml).

[[Page 9843]]

Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule changes that are filed 
with the Commission, and all written communications relating to the 
proposed rule changes 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 on official business 
days between the hours of 10 a.m. and 3 p.m. Copies of such filings 
also will be available for inspection and copying at the principal 
offices 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 Nos. SR-NASDAQ-2009-010, SR-
BX-2009-009, and SR-Phlx-2009-14, and should be submitted on or before 
March 27, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\9\
Florence E. Harmon,
Deputy Secretary.
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    \9\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E9-4756 Filed 3-5-09; 8:45 am]
BILLING CODE 8011-01-P