68846 Federal Register / Vol. 75, No. 216 / Tuesday, November 9, 2010 / Notices 

13For purposes only of waiving the 30-day 

operative delay, the Commission has also 

considered the proposed rule’s impact on 

efficiency, competition, and capital formation. See 

15 U.S.C. 78c(f). 

14 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3Changes are marked to the rule text that appears 

in the electronic manual of Nasdaq found at 

http://nasdaqomx.cchwallstreet.com. 

public interest.13 The Commission notes 

that the proposal is designed to conform 

C2’s rules to the rules of the CBOE, and 

does not raise any new regulatory 

issues. For these reasons, the 

Commission designates the proposed 

rule change as operative upon filing. 

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission summarily may 

temporarily suspend 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. 

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 rulecomments@sec.gov. Please include File 

Number SR–C2–2010–008 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–C2–2010–008. 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 Web site viewing and 

printing 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 

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–C2– 

2010–008 and should be submitted on 

or before November 30, 2010 in the 

Federal Register. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.14

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–28246 Filed 11–8–10; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–63239; File No. SR– 

NASDAQ–2010–137] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing of Proposed Rule Change To 

Amend IM–5101–2 To Provide 

Acquisition Companies the Option To 

Hold a Tender Offer in Lieu of a 

Shareholder Vote on a Proposed 

Acquisition 

November 3, 2010. 

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 October 

22, 2010, The NASDAQ Stock Market 

LLC (‘‘Nasdaq’’) 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 Nasdaq. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of the Substance 

of the Proposed Rule Change 

Nasdaq proposes to provide 

acquisition companies an option to hold 

a tender offer in lieu of a shareholder 

vote on a proposed acquisition. 

Proposed new language is in italics; 

proposed deletions are in [brackets].3

IM–5101–2. Listing of Companies Whose 

Business Plan is to Complete One or More 

Acquisitions 

Generally, Nasdaq will not permit the 

initial or continued listing of a Company that 

has no specific business plan or that has 

indicated that its business plan is to engage 

in a merger or acquisition with an 

unidentified company or companies. 

However, in the case of a Company whose 

business plan is to complete an initial public 

offering and engage in a merger or acquisition 

with one or more unidentified companies 

within a specific period of time, Nasdaq will 

permit the listing if the Company meets all 

applicable initial listing requirements, as 

well as the conditions described below. 

(a)–(c) No change. 

(d) Until the Company has satisfied the 

condition in paragraph (b) above, if the 

Company holds a shareholder vote on a 

business combination for which the 

Company must file and furnish a proxy or 

information statement subject to Regulation 

14A or 14C under the Act in advance of the 

shareholder meeting, the[each] business 

combination must be approved by a majority 

of the shares of common stock voting at the 

meeting at which the combination is being 

considered. If a shareholder vote on the 

business combination is held, 

[(e) Until the Company has satisfied the 

condition in paragraph (b) above,] public 

Shareholders voting against a business 

combination must have the right to convert 

their shares of common stock into a pro rata 

share of the aggregate amount then in the 

deposit account (net of taxes payable and 

amounts distributed to management for 

working capital purposes) if the business 

combination is approved and consummated. 

A Company may establish a limit (set no 

lower than 10% of the shares sold in the IPO) 

as to the maximum number of shares with 

respect to which any Shareholder, together 

with any affiliate of such Shareholder or any 

person with whom such shareholder is acting 

as a ‘‘group’’ (as such term is used in Sections 

13(d) and 14(d) of the Act), may exercise 

such conversion rights. For purposes of this 

paragraph [(e)] (d), public Shareholder 

excludes officers and directors of the 

Company, the Company’s sponsor, the 

founding Shareholders of the Company, and 

any Family Member or affiliate of any of the 

foregoing persons, or the beneficial holder of 

more than 10% of the total shares 

outstanding. 

Until the Company completes a business 

combination where all conditions in 

paragraph (b) above are met, the Company 

must notify Nasdaq on the appropriate form 

about each proposed business combination. 

Following each business combination, the 

combined Company must meet the 

requirements for initial listing. If the 

Company does not meet the requirements for 

initial listing following a business 

combination or does not comply with one of 


wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1
Federal Register / Vol. 75, No. 216 / Tuesday, November 9, 2010 / Notices 68847 

4 IM–5101–2. 

5The Listing Rules also require that at least 90% 

of the gross proceeds from the SPAC’s initial public 

offering and any concurrent sale of equity securities 

must be deposited in a trust account; that within 

36 months of the effectiveness of the SPAC’s IPO 

registration statement, the SPAC must complete one 

or more business combinations having an aggregate 

fair market value of at least 80% of the value of the 

deposit account; and, that each business 

combination must be approved by a majority of the 

SPAC’s independent directors. 

6The term ‘‘Shareholder’’ is defined broadly by 

Rule 5005(a)(37) as ‘‘a record or beneficial owner of 

a security listed or applying to list.’’ 

7Rule 5005(a)(34). 

8 15 U.S.C. 78f. 

the requirements set forth above, Nasdaq will 

issue a Staff Delisting Determination under 

Rule 5810 to delist the Company’s securities. 

(e) Until the Company has satisfied the 

condition in paragraph (b) above, if a 

shareholder vote on the business 

combination is not held for which the 

Company must file and furnish a proxy or 

information statement subject to Regulation 

14A or 14C under the Act, the Company must 

provide all Shareholders with the 

opportunity to redeem all their shares for 

cash equal to their pro rata share of the 

aggregate amount then in the deposit account 

(net of taxes payable and amounts 

distributed to management for working 

capital purposes), pursuant to Rule 13e–4 

and Regulation 14E under the Act, which 

regulate issuer tender offers. The Company 

must file tender offer documents with the 

Commission containing substantially the 

same financial and other information about 

the business combination and the 

redemption rights as would be required 

under Regulation 14A of the Act, which 

regulates the solicitation of proxies. Until the 

Company completes a business combination 

where all conditions in paragraph (b) above 

are met, the Company must notify Nasdaq on 

the appropriate form about each proposed 

business combination. Following each 

business combination, the combined 

Company must meet the requirements for 

initial listing. If the Company does not meet 

the requirements for initial listing following 

a business combination or does not comply 

with one of the requirements set forth above, 

Nasdaq will issue a Staff Delisting 

Determination under Rule 5810 to delist the 

Company’s securities. 

* * * * * 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, 

Nasdaq 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. Nasdaq 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 

In March 2009, Nasdaq adopted rules 

to permit the listing of companies 

whose business plan was to complete an 

initial public offering and engage in a 

merger or acquisition with one or more 

unidentified companies within a 

specific period of time (‘‘Acquisition 

Companies’’ or ‘‘SPACs’’).4 These listing 

requirements included additional 

protections designed to protect investors 

from certain risks unique to this type of 

company, including that the Acquisition 

Company obtain a vote of shareholders 

prior to consummating any acquisition 

and offer shareholders voting against the 

acquisition the ability to redeem their 

shares in exchange for a pro rata share 

of the cash held by the Acquisition 

Company.5 Similar protections have 

been voluntarily adopted by other 

Acquisition Companies that have not 

listed on Nasdaq. 

As a result of the required vote, in a 

number of cases, hedge funds and other 

activist investors acquired an interest in 

an Acquisition Company and used their 

ability to vote against a proposed 

acquisition as leverage to obtain 

additional consideration not available to 

other shareholders. For example, they 

may negotiate the sale of their stake to 

an affiliate of the Acquisition 

Company’s management for a price 

higher than their pro rata share of the 

deposit account. In other cases, the 

withheld votes caused the proposed 

acquisition to fail altogether. In order to 

prevent this type of ‘‘greenmail,’’ recent 

Acquisition Companies, which went 

public and did not list on an exchange, 

adopted a modified structure under 

which they would not seek a vote on the 

acquisition, unless otherwise required 

by law. Instead, these Acquisition 

Companies would conduct a 

redemption offer pursuant to Rule 13e– 

4 and Regulation 14E under the Act 

after the public announcement and prior 

to the completion of the business 

combination, enabling shareholders 

who are opposed to the transaction to 

tender their shares in exchange for a pro 

rata share of the cash held by the 

Acquisition Company. This is the same 

outcome available to public 

Shareholders who vote against the 

acquisition pursuant to Nasdaq’s 

existing rule. 

Under this new alternative, 

shareholders would still maintain the 

ability to ‘‘vote with their feet’’ if they 

oppose a proposed transaction and 

would, as just noted, also obtain their 

pro rata share of the Acquisition 

Company’s cash through the tender offer 

pursuant to Rule 13e–4 and Regulation 

14E under the Act. As such, Nasdaq 

believes that the protections provided 

by the existing rule would continue to 

be available. Further, this tender offer 

alternative would help prevent 

shareholders who support the 

acquisition and elect to retain their 

shares from being denied the benefits of 

the transaction by the actions of the 

activist investors. Accordingly, Nasdaq 

proposes to modify IM–5201–2 to allow 

an Acquisition Company to conduct a 

tender offer for all shares of all 

Shareholders 6 in exchange for a pro rata 

share of the cash held in trust by the 

Acquisition Company in compliance 

with Rule 13e–4 and Regulation 14E 

under the Act instead of soliciting a 

shareholder vote. 

In addition, the proposed rule change 

would require an Acquisition Company 

that is not subject to the Commission’s 

proxy rules to conduct a tender offer for 

shares in exchange for a pro rata share 

of the cash held in trust by the 

Acquisition Company in compliance 

with Rule 13e–4 and Regulation 14E 

under the Act and provide information 

similar to that required by the 

Commission’s proxy rules, even if the 

Acquisition Company seeks a 

shareholder vote. This change will 

assure that investors, in all cases, get 

comparable information about the 

proposed transaction. 

Last, Nasdaq is amending paragraph 

(d) of IM–5101–2 to include within the 

definition of ‘‘public Shareholder,’’ for 

purposes of the paragraph, the 

beneficial holder of more than 10% of 

the total shares outstanding. The term 

‘‘public Shareholder’’ was meant to 

closely mirror the defined term ‘‘Public 

Holders,’’ but to also include 

Acquisition Company-specific 

classifications as well. Public Holders is 

defined by the Listing Rules as holders 

of a security that includes both 

beneficial holders and holders of record, 

but does not include any holder who is, 

either directly or indirectly, an 

Executive Officer, director, or the 

beneficial holder of more than 10% of 

the total shares outstanding.7

Accordingly, Nasdaq is making the rule 

clear by adding language consistent 

with the definition of Public Holders. 

2. Statutory Basis 

Nasdaq believes that the proposed 

rule change is consistent with the 

provisions of Section 6 of the Act,8 in 

general and with Section 6(b)(5) of the 


wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1
68848 Federal Register / Vol. 75, No. 216 / Tuesday, November 9, 2010 / Notices 

9 15 U.S.C. 78f(b)(5). 10 17 CFR 200.30–3(a)(12). 

Act,9 in particular 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 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 rule change is consistent with 

these requirements in that it provides an 

alternative mechanism for an 

acquisition vehicle to complete a 

transaction in a manner that minimizes 

the disruptive effect of certain 

shareholders, while maintaining 

protections which are designed to 

protect investors and the public interest 

and prevent fraudulent and 

manipulative acts and practices. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

Nasdaq 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 45 days of the date of 

publication of this notice in the Federal 

Register or within such longer period 

up to 90 days (i) as the Commission may 

designate 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 or disapprove 

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 (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an e-mail to rulecomments@sec.gov. Please include File 

Number SR–NASDAQ–2010–137 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–NASDAQ–2010–137. 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 Web site viewing and 

printing 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 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– 

NASDAQ–2010–137 and should be 

submitted on or before November 30, 

2010 in the Federal Register. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.10

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–28247 Filed 11–8–10; 8:45 am] 

BILLING CODE 8011–01–P 

SMALL BUSINESS ADMINISTRATION 

[Disaster Declaration #12353 and #12354] 

North Carolina Disaster Number NC– 

00030 

AGENCY: U.S. Small Business 

Administration. 

ACTION: Amendment 2. 

SUMMARY: This is an amendment of the 

Presidential declaration of a major 

disaster for the State of North Carolina 

(FEMA–1942–DR), dated 10/14/2010. 

Incident: Severe Storms, Flooding, 

and Straight-line Winds associated with 

remnants of Tropical Storm Nicole. 

Incident Period: 09/27/2010 through 

10/01/2010. 

DATES: Effective Date: 11/01/2010. 

Physical Loan Application Deadline 

Date: 12/13/2010. 

EIDL Loan Application Deadline Date: 

07/14/2011. 

ADDRESSES: Submit completed loan 

applications to: U.S. Small Business 

Administration, Processing and 

Disbursement Center, 14925 Kingsport 

Road, Fort Worth, TX 76155. 

FOR FURTHER INFORMATION CONTACT: A. 

Escobar, Office of Disaster Assistance, 

U.S. Small Business Administration, 

409 3rd Street, SW., Suite 6050, 

Washington, DC 20416. 

SUPPLEMENTARY INFORMATION: The notice 

of the Presidential disaster declaration 

for the State of North Carolina, dated 

10/14/2010 is hereby amended to 

include the following areas as adversely 

affected by the disaster: 

Primary Counties: (Physical Damage 

and Economic Injury Loans): Camden, 

Martin, New Hanover, Washington. 

Contiguous Counties: (Physical Damage 

and Economic Injury Loans): 

North Carolina: Currituck, 

Pasquotank. 

Virginia: Chesapeake City, Suffolk 

City. 

All other information in the original 

declaration remains unchanged. 

(Catalog of Federal Domestic Assistance 

Numbers 59002 and 59008) 

James E. Rivera, 

Associate Administrator for Disaster 

Assistance. 

[FR Doc. 2010–28200 Filed 11–8–10; 8:45 am] 

BILLING CODE 8025–01–M 

SMALL BUSINESS ADMINISTRATION 

[Disaster Declaration #12370 and #12371] 

California Disaster #CA–00160 

AGENCY: U.S. Small Business 

Administration. 


wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1