Federal Register / Vol. 74, No. 37 / Thursday, February 26, 2009 / Notices 8831 

7 15 U.S.C. 78f(b). 

8 15 U.S.C. 78f(b)(5). 9 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3 17 CFR 240.19b–4(f)(6). 

4Changes are marked to the rule text that appears 

in the electronic manual of Nasdaq found at 

http://nasdaqomx.cchwallstreet.com. 

6(b) of the Act,7 in general, and furthers 

the objectives of Section 6(b)(5) of the 

Act,8 in particular, in that it is designed 

to prevent fraudulent and manipulative 

acts and practices, promote just and 

equitable principles of trade, remove 

impediments to and perfect the 

mechanisms of a free and open market 

and a national market system, and, in 

general, protect investors and the public 

interest. The proposed changes to the 

rule should continue to contribute to the 

Exchange’s ability to maintain a fair and 

orderly market in a manner that will 

limit unfair advantage and encourage 

competition. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

CBOE does not believe that the 

proposed rule change will impose any 

burden on competition not necessary or 

appropriate in furtherance of the 

purposes of the Act. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

No written comments were solicited 

or received with respect to the proposed 

rule change. 

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 rulecomments@sec.gov. Please include File 

Number SR–CBOE–2009–009 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–CBOE–2009–009. 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 the CBOE. 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–CBOE–2009–009 and 

should be submitted on or before March 

19, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.9

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–4120 Filed 2–25–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59424; File No. SR– 

NASDAQ–2009–009] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change To Clarify 

Nasdaq’s Definition of ‘‘Controlled 

Company’’ 

February 19, 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 

10, 2009, 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. Nasdaq has designated the 

proposed rule change as effecting a 

change described under Rule 19b–4(f)(6) 

under the Act,3 which renders the 

proposal effective upon filing with the 

Commission. 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 clarify its 

definition of a ‘‘controlled company.’’ 

Nasdaq will implement the proposed 

rule upon approval [sic]. The text of the 

proposed rule change is below. 

Proposed new language is in italics.4

* * * * * 

4350. Qualitative Listing 

Requirements for Nasdaq Issuers Except 

for Limited Partnerships. 

(a)–(b) No change. 

(c) Independent Directors 

(1)–(4) No change. 

(5) A Controlled Company is exempt 

from the requirements of this Rule 

4350(c), except for the requirements of 

subsection (c)(2) which pertain to 

executive sessions of independent 

directors. A Controlled Company is a 

company of which more than 50% of 

the voting power for the election of 

directors is held by an individual, a 

group or another company. A Controlled 

Company relying upon this exemption 

must disclose in its annual meeting 

proxy statement (or, if the issuer does 

8832 Federal Register / Vol. 74, No. 37 / Thursday, February 26, 2009 / Notices 

5Nasdaq previously proposed this change in SR– 

NASDAQ–2008–005, which was withdrawn as of 

the date of this current filing. 

6Nasdaq Rule 4350(c)(5). 

7Nasdaq Rule 4350(c)(5) and Nasdaq IM–4350–7. 

8 15 U.S.C. 78f. 

9 15 U.S.C. 78f(b)(5). 

10 15 U.S.C. 78s(b)(3)(A). 

11 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 

4(f)(6)(iii) requires that a self-regulatory 

organization submit to the Commission written 

notice of its intent to file the proposed rule change, 

along with a brief description and text of the 

proposed rule change, at least five business days 

prior to the date of filing of the proposed rule 

change, or such shorter time as designated by the 

Commission. The Commission notes that Nasdaq 

has satisfied the five-day pre-filing notice 

requirement. 

12 17 CFR 240.19b–4(f)(6)(iii). 

13 17 CFR 240.19b–4(f)(6)(iii). 

14For the purposes only of waiving the 30-day 

operative delay, the Commission has considered the 

proposed rule’s impact on efficiency, competition, 

and capital formation. See 15 U.S.C. 78c(f). 

not file a proxy, in its Form 10–K or 20– 

F) that it is a Controlled Company and 

the basis for that determination. 

(d)–(n) No change. 

* * * * * 

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 

The purpose of this rule filing is to 

clarify the definition of a ‘‘controlled 

company.’’ 5 Nasdaq currently allows a 

‘‘controlled company’’ to exempt itself 

from the requirements to have a 

majority of independent directors on its 

board and to have independent 

compensation and nomination 

committees.6 Under Nasdaq’s rules, a 

‘‘controlled company’’ is a company of 

which more than 50% of the voting 

power is held by an individual, group, 

or another company, and, in order for a 

group to exist, the shareholders 

comprising the group must have 

publicly filed a notice that they are 

acting as a group (e.g., a Schedule 13D).7

Under Nasdaq’s current practice, in 

order for a company to be deemed a 

controlled company, more than 50% of 

the voting power for the election of 

directors must be held by an individual, 

group or another company. Nasdaq 

proposes to amend its definition of 

‘‘controlled company’’ to provide 

transparency to this interpretation and 

to provide clarity to companies and 

investors about the availability of the 

‘‘controlled company’’ exception. In 

applying the rule in this manner, 

Nasdaq intends to limit the controlled 

company exception to companies with 

shareholders who truly control that 

company and its board composition. For 

example, the controlled company 

exception would not apply where a 

shareholder agreement exists relating 

only to the disposition of assets. 

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 

Act,9 in particular. Section 6(b)(5) 

requires, among other things, that 

Nasdaq’s rules be designed to prevent 

fraudulent and manipulative acts and 

practices, to promote just and equitable 

principles of trade, 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 change is 

consistent with these requirements in 

that it will prevent issuers from relying 

on the exception when they are not 

truly a ‘‘controlled company.’’ The 

proposed rule change also will provide 

a standard that is clear, straightforward 

and uniform for issuers to understand 

and apply. 

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 

Because the foregoing rule does not: 

(i) Significantly affect the protection of 

investors or the public interest; (ii) 

impose any significant burden on 

competition; and (iii) become operative 

for 30 days from the date on which it 

was filed, or such shorter time as the 

Commission may designate, if 

consistent with the protection of 

investors and the public interest, it has 

become effective pursuant to Section 

19(b)(3)(A) of the Act 10 and Rule 19b– 

4(f)(6) thereunder.11

Normally, a proposed rule change 

filed under 19b–4(f)(6) may not become 

operative prior to 30 days after the date 

of filing. However, Rule 19b– 

4(f)(6)(iii) 12 permits the Commission to 

designate a shorter time if such action 

is consistent with the protection of 

investors and the public interest. 

Nasdaq requests that the Commission 

waive the 30-day waiting period.13

Nasdaq believes that the proposed 

rule change does not significantly affect 

the protection of investors or the public 

interest because it provides 

transparency to Nasdaq’s existing 

interpretation of this Rule. Nasdaq 

requests the waiver so that companies 

that file their annual reports and proxy 

statements with the Commission during 

that period will have the benefit of this 

clarification. In that regard, Nasdaq 

notes that, depending on their filing 

deadline under the Commission’s rules, 

companies with fiscal year ends 

between September 30, 2008 and 

December 31, 2008, either just filed, or 

are about to file, their annual reports 

with the Commission and generally file 

their proxy statements shortly 

thereafter. 

The Commission believes that waiver 

of the operative date delay is 

appropriate, particularly because 

companies whose fiscal year recently 

ended just filed, or are about to file, 

their annual reports with the 

Commission, and proxy statements 

shortly thereafter, would have clarity 

regarding the controlled company 

provision. Therefore, the Commission 

believes that waiving the 30-day 

operative delay is consistent with the 

protection of investors and the public 

interest and designates the proposed 

rule change to be operative upon 

filing.14

At any time within 60 days of the 

filing of such 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. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the foregoing, 

Federal Register / Vol. 74, No. 37 / Thursday, February 26, 2009 / Notices 8833 

15 17 CFR 200.30–3(a)(12). 

including whether the proposed rule 

change, as amended, 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–2009–009 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

Station Place, 100 F Street, NE., 

Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–NASDAQ–2009–009. 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 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 Nasdaq. 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–2009–009 and 

should be submitted on or before March 

19, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.15

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–4062 Filed 2–25–09; 8:45 am] 

BILLING CODE 8011–01–P 

SMALL BUSINESS ADMINISTRATION 

National Small Business Development 

Center Advisory Board 

AGENCY: U.S. Small Business 

Administration (SBA). 

ACTION: Notice of open Federal Advisory 

Committee meeting. 

SUMMARY: The SBA is issuing this notice 

to announce the location, date, time and 

agenda for the next meeting of the 

National Small Business Development 

Center (SBDC) Advisory Board. 

DATES: The meeting will be held on 

Tuesday, March 17, 2009 at 1 p.m. EST. 

ADDRESSES: This meeting will be held 

via conference call. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 10(a) of the Federal Advisory 

Committee Act (5 U.S.C. Appendix 2), 

SBA announces the meeting of the 

National SBDC Advisory Board. This 

Board provides advice and counsel to 

the SBA Administrator and Associate 

Administrator for Small Business 

Development Centers. 

The purpose of this meeting is to 

discuss following issues pertaining to 

the SBDC Advisory Board: 

—Board Wrap-Up of ASBDC Spring 

Meeting. 

—SBA Update. 

—Member Roundtable. 

FOR FURTHER INFORMATION CONTACT: The 

meeting is open to the public; however, 

advance notice of attendance is 

requested. Anyone wishing to be a 

listening participant must contact 

Alanna Falcone by Friday, March 13, 

2009, by fax or e-mail in order to be 

placed on the agenda. Alanna Falcone, 

Program Analyst, 409 Third Street, SW., 

Washington, DC 20416, Phone, 202– 

619–1612, Fax 202–481–0134, e-mail, 

alanna.falcone@sba.gov. 

Additionally, if you need 

accommodations because of a disability 

or require additional information, please 

contact Alanna Falcone at the 

information above. 

Bridget E. Bean, 

Acting Committee Management Officer. 

[FR Doc. E9–4113 Filed 2–25–09; 8:45 am] 

BILLING CODE 8025–01–P 

SOCIAL SECURITY ADMINISTRATION 

[Docket No. SSA–2009–0002] 

Agreement on Social Security Between 

the United States and the Republic of 

Poland; Entry Into Force 

AGENCY: Social Security Administration. 

ACTION: Notice. 

SUMMARY: We are giving notice that an 

agreement coordinating the United 

States (U.S.) and the Polish social 

security programs will enter into force 

on March 1, 2009. The agreement with 

the Republic of Poland, which was 

signed on April 2, 2008, is similar to 

U.S. social security agreements already 

in force with 23 other countries— 

Australia, Austria, Belgium, Canada, 

Chile, the Czech Republic, Denmark, 

Finland, France, Germany, Greece, 

Ireland, Italy, Japan, Korea (South), 

Luxembourg, the Netherlands, Norway, 

Portugal, Spain, Sweden, Switzerland 

and the United Kingdom. Agreements of 

this type are authorized by section 233 

of the Social Security Act. 42 U.S.C. 

433. 

Like the other agreements, the U.S.- 

Polish agreement eliminates dual social 

security coverage. This situation exists 

when a worker from one country works 

in the other country and is covered 

under the social security systems of 

both countries for the same work. When 

dual coverage occurs without such 

agreements in force, the worker, the 

worker’s employer, or both may be 

required to pay social security 

contributions to the two countries 

simultaneously. Under the U.S.-Polish 

agreement, a worker who is sent by an 

employer in one country to work in the 

other country for 5 or fewer years 

remains covered only by the sending 

country. The agreement includes 

additional rules that eliminate dual U.S. 

and Polish coverage in other work 

situations. 

The agreement also helps eliminate 

situations where workers suffer a loss of 

benefit rights because they have divided 

their careers between the two countries. 

Under the agreement, workers may 

qualify for partial U.S. benefits or partial 

Polish benefits based on combined 

(totalized) work credits from both 

countries. 

Persons who would like a copy of the 

agreement or want more information 

about its provisions may write to the 

Social Security Administration, Office 

of International Programs, Post Office 

Box 17741, Baltimore, MD 21235–7741 

or visit the Social Security Web site at 

http://www.socialsecurity.gov/ 

international. 

Dated: February 20, 2009. 

Michael J. Astrue, 

Commissioner of Social Security. 

[FR Doc. E9–4104 Filed 2–25–09; 8:45 am] 

BILLING CODE 4191–02–P