Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Notices 3117 

1 15 U.S.C. 78k–1(a)(3). 

2 17 CFR 242.608. 

3On November 6, 2008, the Commission 

approved the Symbology Plan that was originally 

proposed by the CHX, Nasdaq, FINRA, NSX, and 

Phlx, subject to certain changes. See Securities 

Exchange Act Release No. 58904, 73 FR 67218 

(November 13, 2008) (File No. 4–533). 

4 17 CFR 242.608(b)(3)(ii). 

5 17 CFR 242.608(b)(2). 

6 17 CFR 200.30–3(a)(29). 

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

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59225; File No. 4–533] 

Joint Industry Plan; Notice of Filing 

and Immediate Effectiveness of 

Amendment No. 1 to the National 

Market System Plan for the Selection 

and Reservation of Securities Symbols 

To Modify Certain Effective Dates in 

Plan, Submitted by NASDAQ OMX BX, 

Inc., the Chicago Stock Exchange, Inc., 

the Chicago Board Options Exchange, 

Incorporated, the International 

Securities Exchange, LLC, the 

Financial Industry Regulatory 

Authority, Inc., the National Stock 

Exchange, Inc., The NASDAQ Stock 

Market LLC, the New York Stock 

Exchange LLC, NYSE Alternext 

Exchange US LLC, NYSE Arca, Inc., 

and the NASDAQ OMX PHLX, Inc. 

January 9, 2009. 

I. Introduction 

Pursuant to Section 11A(a)(3) of the 

Securities Exchange Act of 1934 

(‘‘Act’’) 1 and Rule 608 thereunder,2

notice is hereby given that on January 5, 

2009, NASDAQ OMX BX, Inc., the 

Chicago Stock Exchange, Inc. (‘‘CHX’’), 

the Chicago Board Options Exchange, 

Incorporated, the International 

Securities Exchange, LLC, the Financial 

Industry Regulatory Authority, Inc. 

(‘‘FINRA’’), the National Stock 

Exchange, Inc. (‘‘NSX’’), The NASDAQ 

Stock Market LLC (‘‘Nasdaq’’), the New 

York Stock Exchange LLC, NYSE 

Alternext Exchange US LLC, NYSE 

Arca, Inc., and the NASDAQ OMX 

PHLX, Inc. (‘‘Phlx’’) (together, the 

‘‘Parties’’) filed with the Securities and 

Exchange Commission (‘‘Commission’’) 

Amendment No. 1 to the National 

Market System Plan for the Selection 

and Reservation of Securities Symbols 

(‘‘Symbology Plan’’ or ‘‘Plan’’).3 The 

amendment modifies certain effective 

dates in the Symbology Plan. The 

Commission is publishing this notice of 

filing and immediate effectiveness to 

solicit comments on the amendment 

from interested persons. 

II. Description and Purpose of the 

Amendment 

The purpose of Amendment No. 1 is 

to: (i) Delay the start of the 30-day initial 

symbol reservation period until 120 

days after the Commission’s approval of 

the Plan; and (ii) delay the 

establishment of the Plan as the 

exclusive method of allocating symbols 

of one-, two-, three-, four-, and fivecharacters in length until 150 days after 

the Commission approval of the Plan. 

Through the amendment, the initial 

symbol reservation period would now 

commence on March 6, 2009 and the 

Plan would become the exclusive 

method of allocating symbols of one-, 

two-, three-, four-, and five-characters in 

length on April 5, 2009. The purpose of 

the amendment is to give the parties 

adequate time to properly evaluate and 

select the Plan processor and to 

implement the Plan in an organized 

fashion. 

III. Effectiveness of the Proposed 

Symbology Plan Amendment 

Pursuant to paragraph to (b)(3)(ii) of 

Rule 608 under the Act,4 the Parties 

have designated this amendment as one 

concerned solely with the 

administration of the Plan, thereby 

qualifying the amendment to be put into 

effect upon filing with the Commission. 

The Commission may summarily 

abrogate the amendment within sixty 

days of its filing and require refiling and 

approval of the amendment by 

Commission order pursuant to Rule 

608(b)(2) under the Act 5 if it appears to 

the Commission that such action is 

necessary or appropriate in the public 

interest, for the protection of investors, 

or the maintenance of fair and orderly 

markets, to remove impediments to, and 

perfect the mechanisms of, a national 

market system, 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 Amendment No. 1 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 4–533 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 4–533. 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. 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 4–533 and should be submitted 

on or before February 6, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.6

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–882 Filed 1–15–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59217; File No. SR–NYSE– 

2008–138] 

Self-Regulatory Organizations; Notice 

of Filing of Proposed Rule Change by 

New York Stock Exchange LLC To 

Memorialize an Interpretation of the 

Listed Company Manual Concerning 

Shareholder Approval Requirements 

and To Describe a Certain Application 

of its Audit Committee Rule 

January 8, 2009. 

Pursuant to Section 19(b)(1) 1 of the 

Securities Exchange Act of 1934 (the 

‘‘Exchange Act’’),2 and Rule 19b–4 

thereunder,3 notice is hereby given that, 

mstockstill on PROD1PC66 with NOTICES

3118 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Notices 

4The Commission notes that the terms ‘‘FHFA,’’ 

‘‘FNM,’’ and ‘‘FRE’’ refer to the Federal Housing 

Finance Agency, Fannie Mae, and Freddie Mac, 

respectively. 

5See Questions and Answers of Conservatorship, 

available on the Web site of the FHFA. (http:// 

www.ofheo.gov/media/pdf/FHFACONSERVQA.pdf) 

Note that FHFA in the same paragraph stated that 

‘‘Stockholders will continue to retain all rights in 

the stock’s financial worth; as such worth is 

determined by the market.’’ 

6 15 U.S.C. 78f(b). 

7 15 U.S.C. 78f(b)(5). 

on December 22, 2008, New York Stock 

Exchange LLC (the ‘‘NYSE’’ or the 

‘‘Exchange’’) filed with the Securities 

and Exchange 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 

changes from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to 

memorialize an interpretation of the 

Listed Company Manual. The text of the 

proposed rule change is available on the 

Exchange’s Web site (http:// 

www.nyse.com), at the Exchange’s 

Office of the Secretary 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, the 

self-regulatory organization 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 NYSE 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 September 7, 2008 the Secretary of 

the Treasury of the United States and 

the Director of the FHFA jointly 

announced that on September 6, 2008, 

pursuant to authority previously granted 

by Congress, FNM and FRE were placed 

into conservatorship with the FHFA, 

and Treasury entered into a Senior 

Preferred Stock Purchase Agreement 

with each company providing for, 

among other things, the issuance by 

each company to Treasury of senior 

preferred stock, and common stock 

warrants representing an ownership 

stake of 79.9% in each company.4

The issuance of a security convertible 

into common stock equal to or in excess 

of 20% of the then outstanding common 

stock of a listed company generally 

requires shareholder approval under 

Section 312.03 of the NYSE Listed 

Company Manual. The NYSE has for 

many years taken the position that a 

listed company which is a debtor-inpossession under the U.S. bankruptcy 

laws satisfies the stockholder approval 

that might otherwise be required in 

connection with an issuance of common 

stock or a security convertible into 

common stock by obtaining bankruptcy 

court approval of the issuance of such 

stock. Such an interpretation is the only 

practical approach given that in such a 

circumstance the court, not the 

stockholders, has the authority to 

authorize or refuse to authorize the 

issuance of the security. Consequently, 

this rule filing codifies the Exchange’s 

longstanding position that a listed 

company which is a debtor-inpossession satisfies any applicable 

stockholder approval requirement under 

Section 312.03 by obtaining bankruptcy 

court approval of the proposed issuance. 

The FHFA has specified that ‘‘the 

powers of the stockholders [of FNM and 

FRE] are suspended until the 

conservatorship is terminated.’’5 Based 

on this, the NYSE has concluded that 

for purposes of its rules requiring 

stockholder approval of the issuance of 

securities, i.e., Sections 312.03 and 

303A.08 of the Listed Company Manual, 

it is appropriate to treat FNM and FRE 

while they are in conservatorship in the 

same manner as if they were each a 

debtor-in-possession under the 

bankruptcy law. Accordingly, the NYSE 

takes the position that the requirement 

of Section 312.03 has been satisfied in 

connection with the issuance to the 

Department of the Treasury (the 

‘‘Treasury’’) by each of FNM and FRE of 

the warrants exercisable for common 

stock. 

Following the establishment of the 

conservatorship, the independent 

directors serving on the audit 

committees of the boards of directors of 

each of the companies left the board. 

Each of FNM and FRE are currently 

engaged in obtaining replacement 

directors and arranging the appropriate 

delegation from FHFA to the boards and 

the audit committees to allow the audit 

committees to function. In keeping with 

its normal procedures under the 

provisions of Listed Company Manual 

Section 303A.06, NYSE is allowing the 

companies an appropriate period of 

time in which to fill the vacancies on 

the audit committee. The NYSE was 

informed that in connection with the 

quarterly financial reports on Form 10– 

Q which were filed in November for the 

companies’ third quarter, each company 

arranged for its staff and independent 

auditor to make a presentation regarding 

the quarterly report to appropriate 

departments of the FHFA that was 

intended to replicate the kind of review 

that an audit committee would normally 

conduct with respect to a company’s 

quarterly financials. The NYSE believes 

that this action is appropriate in light of 

the fact that neither company had an 

audit committee that was able to 

conduct that review. The Exchange 

notes that this filing does not seek to 

interpret Rule 10A–3 under the 

Sarbanes-Oxley Act. Rather, the 

Exchange is simply describing its 

application of the requirements of 

Section 303A.06 of the Manual to FNM 

and FRE during the period that they do 

not have independent audit committees. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

Section 6(b) 6 of the Exchange Act in 

general and furthers the objectives of 

Section 6(b)(5) of the Exchange Act 7 in 

particular in that it is designed 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 Exchange believes 

its proposed interpretations of Sections 

312.03 and 303A.06 are reasonable in 

light of the policies underlying those 

rules and constitute a suitable 

application of its rules to this unique 

and unprecedented situation. In 

particular, the Exchange notes that (i) it 

is in the public interest that the issuance 

of securities to the Treasury should not 

be subject to shareholder approval in 

light of the scale of Treasury’s provision 

of capital to the two companies and (ii) 

the oversight of the companies’ financial 

reporting by FHFA provides a 

reasonable level of protection to 

investors while the companies are 

repopulating their independent audit 

committees required by Section 

303A.06. 

mstockstill on PROD1PC66 with NOTICES

Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Notices 3119 

8 17 CFR 240.19b–4(f)(1). 

9 17 CFR 240.19b–4(f)(1). 

10 17 CFR 200.30–3(a)(12). 

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

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change will impose 

any burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Exchange Act. 

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 proposed rule change is effective 

upon filing pursuant to Section 

19(b)(3)(A) of the Exchange Act 8 and 

paragraph (f)(1) of Rule 19b–4 

thereunder 9 as constituting a stated 

policy, practice, or interpretation with 

respect to the meaning, administration, 

or enforcement of an existing Exchange 

rule. At any time within 60 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 Exchange 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 Exchange 

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–NYSE–2008–138 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–NYSE–2008–138. 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 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–NYSE– 

2008–138 and should be submitted on 

or before February 6, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.10

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–881 Filed 1–15–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59229; File No. SR–NYSE– 

2009–01] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by New York 

Stock Exchange LLC Adopting a 

Temporary Equity Transaction Fee for 

Shares Executed on the NYSE 

MatchPointSM System, Effective Upon 

Filing With the Securities and 

Exchange Commission Until February 

28, 2009 

January 12, 2009. 

Pursuant to Section 19(b)(1) 1 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’) 2 and Rule 19b–4 thereunder,3

notice is hereby given that, on January 

7, 2009, New York Stock Exchange LLC 

(‘‘NYSE’’ or the ‘‘Exchange’’) filed with 

the Securities and Exchange 

Commission (the ‘‘Commission’’) the 

proposed rule change as described in 

Items I, II, and III below, which Items 

have been prepared by the selfregulatory organization. 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 

The Exchange proposes to adopt a 

temporary equity transaction fee for 

shares executed on the NYSE 

MatchPointSM (‘‘NYSE MatchPoint’’ or 

‘‘MatchPoint’’) system, effective upon 

filing with the Securities Exchange 

Commission [sic] (‘‘SEC’’) until 

February 28, 2009. The Exchange will 

charge each member organization using 

the MatchPoint system a per share fee 

scaled to the average daily volume of 

shares it executes on the MatchPoint 

system. 

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 

self-regulatory organization 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 those 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 parts of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

Through this filing, the Exchange 

proposes to amend its equity transaction 

fee schedule on the NYSE MatchPoint 

system effective upon filing with the 

SEC until February 28, 2009. The 

current equity transaction fee is $.0015 

per share executed on the MatchPoint 

system. The Exchange proposes to adopt 

a scaled fee for MatchPoint users based 

on the average daily volume of shares 

executed during a calendar month 

through the MatchPoint system as 

follows: 

Average daily volume of 

shares executed 

Rate 

(per share) 

50,000 shares or less ............. $.0015 

Over 50,000 to 499,999 ......... .0010 

500,000 and greater ............... .0005 

mstockstill on PROD1PC66 with NOTICES