[Federal Register Volume 73, Number 184 (Monday, September 22, 2008)]
[Notices]
[Pages 54648-54649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22014]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-58547; File No. SR-BSE-2008-45]
Self-Regulatory Organizations; Boston Stock Exchange,
Incorporated; Notice of Filing of Proposed Rule Change To Amend By-Laws
September 15, 2008.
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 September 5, 2008, the Boston Stock Exchange (the ``Exchange'')
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 the Exchange. The Commission is publishing
this notice to solicit comments on the proposed rule from interested
persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to amend its by-laws to make certain changes
that the Exchange committed to make in SR-BSE-2008-23.\3\ The text of
the proposed rule change is available from the principal office of the
Exchange, at the Commission's Public Reference Room, and is also
available at http://nasdaqtrader.com/Trader.aspx?id=Boston_Stock_Exchange.
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\3\ Securities Exchange Act Release No. 58324 (August 7, 2008),
73 FR 46936 (August 12, 2008); Securities Exchange Act Release No.
57757 (May 1, 2008), 73 FR 26159 (May 8, 2008) (SR-BSE-2008-23).
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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 Exchange 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. The Exchange 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 Exchange was acquired by The NASDAQ OMX
Group, Inc. (``NASDAQ OMX''). In SR-BSE-2008-23, the Exchange's filing
seeking approval of this acquisition, the Exchange committed that it
would, immediately following closing of the acquisition, seek Board of
Directors and Commission approval for several changes to its By-Laws.
The changes, which were requested by Commission staff, could not be
included in SR-BSE-2008-23 because Article XX of the Exchange's former
Constitution, which was replaced by the new By-Laws at the closing,
provided that the Exchange's members must approve amendments to the
Exchange's Constitution. The Exchange's members voted, on December 7,
2007, to approve the By-Laws as originally submitted in SR-BSE-2008-23,
and it would have been impracticable and unduly expensive to seek a
second member vote for approval of these additional changes prior to
closing. The changes in question are as follows:
In Article I, the Exchange is amending the definition of
``Voting Date'' to make it clear that the Exchange Board of Directors
must annually select a Voting Date for the selection of Member
Representative Directors, although a vote will actually occur on that
date only if members have nominated candidates for election other than
those nominated by the Exchange's Member Nominating Committee.
Accordingly, the amended definition reads: `` `Voting Date' means the
date selected by the Board on an annual basis, on which Exchange
Members may vote with respect to Member Representative Directors in the
event of a Contested Vote.''
[[Page 54649]]
In order to limit the influence that a single affiliated
group of members might exercise over the Exchange, Section 4.4 of the
By-Laws is being amended to provide that in a contested election for
Member Representative Directors, an Exchange Member, either alone or
together with its affiliates, may not cast votes representing more than
20% of the votes cast for a candidate, and any votes cast by the
Exchange Member, either alone or together with its affiliates, in
excess of such 20% limitation shall be disregarded.
The Exchange is amending Section 4.14 of the By-Laws to
make it clear that the Exchange's Nominating Committee must nominate
the person nominated by Boston Options Exchange Regulation LLC's
Nominating Committee for service on the Exchange Board as a
representative of participants in the Boston Options Exchange unless
that person is not eligible for service under Section 4.3 of the By-
Laws (as would be the case, for example, if the nominee was subject to
a statutory disqualification). Similarly, the Exchange is amending
Section 3.1 of the By-Laws to make it clear that NASDAQ OMX, as the
sole stockholder of the Exchange, shall vote for the election of the
director candidates nominated or voted on through the processes
established by Article IV of the By-Laws, except in the case of a
person not eligible for service under Section 4.3 of the By-Laws.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\4\ in general, and with
Section 6(b)(1) and (b)(5) of the Act,\5\ in particular, in that the
proposal enables the Exchange 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 Exchange Members and persons associated
with Exchange Members with provisions of the Act, the rules and
regulations thereunder, and the rules of the Exchange; 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.
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\4\ 15 U.S.C. 78f.
\5\ 15 U.S.C. 78f(b)(1), (5).
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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
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
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 such 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 (http://www.sec.gov/rules/sro.shtml); or
Send an e-mail to [email protected]. Please include
File Number SR-BSE-2008-45 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-BSE-2008-45. 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 the filing also will be available for
inspection and copying at the principal office of the self-regulatory
organization. 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-BSE-
2008-45 and should be submitted on or before October 14, 2008.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\6\
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\6\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-22014 Filed 9-19-08; 8:45 am]
BILLING CODE 8010-01-P