[Federal Register Volume 74, Number 85 (Tuesday, May 5, 2009)]
[Notices]
[Pages 20774-20775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10195]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59818; File No. SR-BSECC-2009-03]


Self-Regulatory Organizations; Boston Stock Exchange Clearing 
Corporation; Notice of Filing and Immediate Effectiveness of a Proposed 
Rule Change To Amend the Certificate of Incorporation of The NASDAQ OMX 
Group, Inc.

April 23, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ notice is hereby given that on April 2, 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 primarily by BSECC. BSECC filed the proposed rule change 
pursuant to Section 19(b)(3)(A)(iii) of the Act \2\ and Rule 19b-
4(f)(3) \3\ thereunder so that the proposal was effective upon filing 
with the Commission. The Commission is publishing this notice to 
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78s-1(b)(3)(A)(iii).
    \3\ 17 CFR 240.19b-4(f)(3).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    BSECC is filing this proposed rule change with regard to proposed 
changes to the Restated Certificate of Incorporation (``Certificate'') 
of its parent corporation, The NASDAQ OMX Group, Inc. (``NASDAQ OMX''). 
The proposed rule change will be implemented as soon as practicable 
following filing with the Commission. The text of the proposed rule 
change is available at http://www.nasdaqtrader.com/Trader.aspx?id=BSECCIE2009, at BSECC'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, 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.\4\
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    \4\ The Commission has modified parts of these statements.
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(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 NASDAQ OMX 
BX, Inc. (``BX''), NASDAQ OMX PHLX, Inc. (``PHLX''), The NASDAQ Stock 
Market LLC (``NASDAQ Exchange''), BSECC, and Stock Clearing Corporation 
of Philadelphia (``SCCP'') have each reviewed the proposed change and 
determined that it should be filed with the Commission.\5\ 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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    \5\ The NASDAQ Exchange, PHLX, BX, BSECC, and SCCP are each 
submitting this 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 is proposing to restate without amendment

[[Page 20775]]

its Certificate. The Certificate is composed of a previous Restated 
Certificate of Incorporation adopted in 2003 and numerous subsequent 
amendments, which under Delaware law are adopted as freestanding 
documents. However, Delaware law allows the various documents 
comprising a certificate of incorporation to be consolidated into a 
single restated certificate upon approval of a corporation's board of 
directors. The change will assist interested persons, including NASDAQ 
OMX stockholders and Commission staff, in reading the Certificate 
without having to review multiple documents. The restated Certificate 
reflects the deletion of both the Certificate of Designations, 
Preferences and Rights of Series D Preferred Stock and the Certificate 
of Elimination that was recently filed with respect to it.\6\ Since the 
latter component of the Certificate cancels the former, they are both 
deleted from the restated Certificate.
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    \6\ Securities Exchange Act Release No. 59460 (February 26, 
2009), 74 FR 9841 (March 6, 2009) (SR-NASDAQ-2009-010, SR-BX-2009-
009, SR-Phlx-2009-14); Securities Exchange Act Release No. 59496 
(March 3, 2009), 74 FR 10626 (March 11, 2009) (SR-BSECC-2009-01); 
Securities Exchange Act Release No. 59494 (March 3, 2009), 74 FR 
10642 (March 11, 2009) (SR-SCCP-2009-01).
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2. Statutory Basis
    The proposed rule change is consistent with Section 17A of the Act 
\7\ in general and with Section 17A(b)(3)(A) of the Act \8\ in 
particular because 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 proposed 
change will enhance the clarity of NASDAQ OMX's governance documents by 
restating the various documents comprising the Certificate as a single 
document.
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    \7\ 15 U.S.C. 78q-1.
    \8\ 15 U.S.C. 78q-1(b)(3)(A).
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(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. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(iii) of the Act \9\ and Rule 19b-4(f)(3) \10\ promulgated 
thereunder because the proposal change is concerned solely with the 
administration of BSECC. At any time within sixty days of the filing of 
the 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.
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    \9\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \10\ 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 
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 (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to [email protected]. Please include 
File Number SR-BSECC-2009-03 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-2009-03. 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 (http://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 such filing also will be available for 
inspection and copying at the principal office of BSECC. 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-2009-03 and should be 
submitted on or before May 26, 2009.

    For the Commission by the Division of Trading and Markets, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. E9-10195 Filed 5-4-09; 8:45 am]
BILLING CODE 8010-01-P