14842 Federal Register / Vol. 77, No. 49 / Tuesday, March 13, 2012 / Notices 

relief pursuant to the rule, the 

Commission will consider (a) whether 

the participation of the BDC in a joint 

enterprise is consistent with the policies 

and purposes of the Act and (b) the 

extent to which such participation is on 

a basis different from or less 

advantageous than that of other 

participants. 

8. Applicant requests an order 

pursuant to sections 57(a)(4) and 57(i) of 

the Act and rule 17d–1 under the Act to 

permit Applicant to issue Restricted 

Stock under the Plan. Applicant 

acknowledges that its role is necessarily 

different from the other participants 

because the other participants are its 

directors and employees. It notes, 

however, that the Plan is in the interest 

of the Company’s stockholders, because 

the Plan will help align the interests of 

Applicant’s employees with those of its 

stockholders, which will encourage 

conduct on the part of those employees 

designed to produce a better return for 

Applicant’s stockholders. Additionally, 

section 57(j)(1) of the Act expressly 

permits any director, officer or 

employee of a BDC to acquire warrants, 

options and rights to purchase voting 

securities of such BDC, and the 

securities issued upon the exercise or 

conversion thereof, pursuant to an 

executive compensation plan which 

meets the requirements of section 

61(a)(3)(B) of the Act. Applicant submits 

that the issuance of Restricted Stock 

pursuant to the Plan poses no greater 

risk to stockholders than the issuances 

permitted by Section 57(j)(1) of the Act. 

Section 23(c) 

9. Section 23(c) of the Act, which is 

made applicable to BDCs by section 63 

of the Act, generally prohibits a BDC 

from purchasing any securities of which 

it is the issuer except in the open market 

pursuant to tenders, or under other 

circumstances as the Commission may 

permit to ensure that the purchases are 

made in a manner or on a basis that 

does not unfairly discriminate against 

any holders of the class or classes of 

securities to be purchased. Applicant 

states that the withholding or purchase 

of shares of Restricted Stock and 

common stock in payment of applicable 

withholding tax obligations or of 

common stock in payment for the 

exercise price of a stock option might be 

deemed to be purchases by the 

Company of its own securities within 

the meaning of section 23(c) and 

therefore prohibited by the Act. 

10. Section 23(c)(3) of the Act permits 

a BDC to purchase securities of which 

it is the issuer in circumstances in 

which the repurchase is made in a 

manner or on a basis that does not 

unfairly discriminate against any 

holders of the class or classes of 

securities to be purchased. Applicant 

believes that the requested relief meets 

the standards of section 23(c)(3). 

11. Applicant submits that these 

purchases will be made in a manner that 

does not unfairly discriminate against 

Applicant’s stockholders because all 

purchases of Applicant’s stock will be at 

the closing price of the common stock 

on the Nasdaq Global Market (or any 

primary exchange on which its shares of 

common stock may be traded in the 

future) on the relevant date (i.e., the 

public market price on the date of grant 

of Restricted Stock and the date of grant 

of Options). Applicant submits that 

because all transactions with respect to 

the Plan will take place at the public 

market price for the Company’s 

common stock, these transactions will 

not be significantly different than could 

be achieved by any stockholder selling 

in a market transaction. Applicant 

represents that no transactions will be 

conducted pursuant to the requested 

order on days where there are no 

reported market transactions involving 

Applicant’s shares. 

12. Applicant represents that the 

withholding provisions in the Plan do 

not raise concerns about preferential 

treatment of Applicant’s insiders 

because the Plan is a bona fide 

compensation plan of the type that is 

common among corporations generally. 

Furthermore, the vesting schedule is 

determined at the time of the initial 

grant of the Restricted Stock and the 

option exercise price is determined at 

the time of the initial grant of the 

Options. Applicant represents that all 

purchases may be made only as 

permitted by the Plan, which will be 

approved by the Company’s 

stockholders prior to any application of 

the relief. Applicant believes that 

granting the requested relief would be 

consistent with the policies underlying 

the provisions of the Act permitting the 

use of equity compensation as well as 

prior exemptive relief granted by the 

Commission under section 23(c) of the 

Act. 

Applicant’s Conditions 

Applicant agrees that the order 

granting the requested relief will be 

subject to the following conditions: 

1. The Plan will be authorized by 

Applicant’s stockholders. 

2. Each issuance of Restricted Stock to 

an officer or employee will be approved 

by the Required Majority of Applicant’s 

directors on the basis that such grant is 

in the best interest of Applicant and its 

stockholders. 

3. The amount of voting securities 

that would result from the exercise of all 

of Applicant’s outstanding warrants, 

options and rights, together with any 

Restricted Stock issued and outstanding 

pursuant to the Plan, will not at the time 

of issuance of any warrant, option, right 

or share of Restricted Stock under the 

Plan, exceed 20 percent of Applicant’s 

outstanding voting securities. 

4. The amount of Restricted Stock 

issued and outstanding will not at the 

time of issuance of any shares of 

Restricted Stock exceed ten percent of 

Applicant’s outstanding voting 

securities. 

5. The Board will review the Plan at 

least annually. In addition, the Board 

will review periodically the potential 

impact that the issuance of Restricted 

Stock under the Plan could have on 

Applicant’s earnings and net asset value 

per share, such review to take place 

prior to any decisions to grant Restricted 

Stock under the Plan, but in no event 

less frequently than annually. Adequate 

procedures and records will be 

maintained to permit such review. The 

Board will be authorized to take 

appropriate steps to ensure that the 

issuance of Restricted Stock under the 

Plan will be in the best interest of 

Applicant and its stockholders. This 

authority will include the authority to 

prevent or limit the granting of 

additional Restricted Stock under the 

Plan. All records maintained pursuant 

to this condition will be subject to 

examination by the Commission and its 

staff. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

Kevin M. O’Neill, 

Deputy Secretary. 

[FR Doc. 2012–5987 Filed 3–12–12; 8:45 am] 

BILLING CODE 8011–01–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, March 15, 2012 at 9:30 

a.m. 

Commissioners, Counsel to the 

Commissioners, the Secretary to the 

Commission, and recording secretaries 

will attend the Closed Meeting. Certain 

staff members who have an interest in 

the matters also may be present. 

The General Counsel of the 

Commission, or his designee, has 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 77, No. 49 / Tuesday, March 13, 2012 / Notices 14843 

1Financial Reporting Release No. 70. 

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

2 17 CFR 240.19b–4. 

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, March 

15, 2012 will be: Institution and 

settlement of injunctive actions; 

Institution and settlement of 

administrative proceedings; 

A collection matter; 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: March 8, 2012. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. 2012–6114 Filed 3–9–12; 11:15 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Securities Act of 1933; Release No. 

9300/March 7, 2012; Securities 

Exchange Act of 1934; Release No. 

66529/March 7, 2012] 

Order Regarding Review of FASB 

Accounting Support Fee for 2012 Under 

Section 109 of the Sarbanes-Oxley Act 

of 2002 

The Sarbanes-Oxley Act of 2002 (the 

‘‘Act’’) provides that the Securities and 

Exchange Commission (the 

‘‘Commission’’) may recognize, as 

generally accepted for purposes of the 

securities laws, any accounting 

principles established by a standard 

setting body that meets certain criteria. 

Consequently, Section 109 of the Act 

provides that all of the budget of such 

a standard setting body shall be payable 

from an annual accounting support fee 

assessed and collected against each 

issuer, as may be necessary or 

appropriate to pay for the budget and 

provide for the expenses of the standard 

setting body, and to provide for an 

independent, stable source of funding, 

subject to review by the Commission. 

Under Section 109(f) of the Act, the 

amount of fees collected for a fiscal year 

shall not exceed the ‘‘recoverable budget 

expenses’’ of the standard setting body. 

Section 109(h) amends Section 13(b)(2) 

of the Securities Exchange Act of 1934 

to require issuers to pay the allocable 

share of a reasonable annual accounting 

support fee or fees, determined in 

accordance with Section 109 of the Act. 

On April 25, 2003, the Commission 

issued a policy statement concluding 

that the Financial Accounting Standards 

Board (‘‘FASB’’) and its parent 

organization, the Financial Accounting 

Foundation (‘‘FAF’’), satisfied the 

criteria for an accounting standardsetting body under the Act, and 

recognizing the FASB’s financial 

accounting and reporting standards as 

‘‘generally accepted’’ under Section 108 

of the Act.1 As a consequence of that 

recognition, the Commission undertook 

a review of the FASB’s accounting 

support fee for calendar year 2012. In 

connection with its review, the 

Commission also reviewed the budget 

for the FAF and the FASB for calendar 

year 2012. 

Section 109 of the Act also provides 

that the standard setting body can have 

additional sources of revenue for its 

activities, such as earnings from sales of 

publications, provided that each 

additional source of revenue shall not 

jeopardize, in the judgment of the 

Commission, the actual or perceived 

independence of the standard setter. In 

this regard, the Commission also 

considered the interrelation of the 

operating budgets of the FAF, the FASB, 

and the Governmental Accounting 

Standards Board (‘‘GASB’’), the FASB’s 

sister organization, which sets 

accounting standards used by state and 

local government entities. The 

Commission has been advised by the 

FAF that neither the FAF, the FASB, nor 

the GASB accept contributions from the 

accounting profession. 

After its review, the Commission 

determined that the 2012 annual 

accounting support fee for the FASB is 

consistent with Section 109 of the Act. 

Accordingly, IT IS ORDERED, 

pursuant to Section 109 of the Act, that 

the FASB may act in accordance with 

this determination of the Commission. 

By the Commission. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. 2012–5983 Filed 3–12–12; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–66537; File No. SR–BX– 

2012–016] 

Self-Regulatory Organizations; 

NASDAQ OMX BX, Inc.; Notice of Filing 

and Immediate Effectiveness of 

Proposed Rule Change To Modify 

Pricing for BX Members Using the 

NASDAQ OMX BX Equities System 

March 8, 2012 

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 March 1, 

2012, The NASDAQ OMX BX, Inc. 

(‘‘BX’’ or ‘‘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 BX. 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 Substance of 

the Proposed Rule Change 

BX proposes to modify its fees for 

orders that are routed using BX’s BTFY 

order routing strategy. BX will 

implement the proposed change 

immediately on March 1, 2012. The text 

of the proposed rule change is available 

at http:// 

nasdaqomxbx.cchwallstreet.com, at 

BX’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, BX 

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. BX 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 

BX is proposing to modify its fees for 

orders that are routed using BX’s BTFY 

order routing strategy. BTFY is a routing 

mstockstill on DSK4VPTVN1PROD with NOTICES