18418 Federal Register / Vol. 74, No. 76 / Wednesday, April 22, 2009 / Notices 

14 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3The Commission notes that on April 2, 2009, 

substantially similar filings also were submitted by 

Boston Stock Exchange Clearing Corporation 

(‘‘BSECC’’) (SR–BSECC–2009–003) and Stock 

Clearing Corporation of Philadelphia (‘‘SCCP’’) (SR– 

SCCP–2009–02), the clearing corporation 

subsidiaries of NASDAQ OMX Group, Inc. 

(‘‘NASDAQ OMX’’). 

4BX, the NASDAQ Exchange, Phlx, BSECC, and 

SCCP have each submitted its respective filing 

pursuant to Section 19(b)(3)(A)(iii) of the Act, 15 

U.S.C. 78s(b)(3)(A)(iii). 

5Securities Exchange Act Release No. 59460 

(February 26, 2009), 74 FR 9841 (March 6, 2009) 

(SR–NASDAQ–2009–010, SR–BX–2009–009, SR– 

Phlx–2009–14); Securities Exchange Act Release 

No. 59496 (March 3, 2009), 74 FR 10626 (March 11, 

2009) (SR–BSECC–2009–01); Securities Exchange 

Act Release No. 59494 (March 3, 2009), 74 FR 

10642 (March 11, 2009) (SR–SCCP–2009–01). 

6 15 U.S.C. 78f. 

7 15 U.S.C. 78f(b)(1), (b)(5). 

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 No. 

SR–ISE–2009–20 and should be 

submitted on or before May 13, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.14

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–9203 Filed 4–21–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59773; File Nos. SR–BX– 

2009–019, SR–NASDAQ–2009–032, SR– 

Phlx–2009–31] 

Self-Regulatory Organizations; 

NASDAQ OMX BX, Inc.; the NASDAQ 

Stock Market LLC; NASDAQ OMX 

PHLX, Inc.; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Changes To Amend the 

Certificate of Incorporation of the 

NASDAQ OMX Group, Inc. 

April 15, 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 April 2, 

2009, NASDAQ OMX BX, Inc. (‘‘BX’’), 

the NASDAQ Stock Market LLC 

(‘‘NASDAQ Exchange’’) and NASDAQ 

OMX PHLX, Inc. (‘‘Phlx’’) (collectively, 

the ‘‘NASDAQ OMX Exchange 

Subsidiaries’’) 3 filed with the Securities 

and Exchange Commission 

(‘‘Commission’’) the proposed rule 

changes as described in Items I, II, and 

III below, which Items have been 

substantially prepared by the NASDAQ 

OMX Exchange Subsidiaries. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

changes from interested persons. 

I. Self-Regulatory Organizations’ 

Statement of the Terms of Substance of 

the Proposed Rule Changes 

The NASDAQ OMX Exchange 

Subsidiaries are filing the proposed rule 

changes with regard to proposed 

changes to the Restated Certificate of 

Incorporation (the ‘‘Certificate’’) of their 

parent corporation, NASDAQ OMX. The 

proposed rule changes will be 

implemented as soon as practicable 

following filing with the Commission. 

The text of the proposed rule changes is 

available at http:// 

www.cchwallstreet.com/nasdaqomx/, 

http://www.nasdaqtrader.com/ 

Trader.aspx?id=BSEIERules2009, and 

http://www.nasdaqtrader.com/ 

Micro.aspx?id=PhlxApproved

Rulefilings, respectively, and at the 

respective NASDAQ OMX Exchange 

Subsidiary’s principal office, and at the 

Commission’s Public Reference Room. 

II. Self-Regulatory Organizations’ 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Changes 

In their filings with the Commission, 

each of the NASDAQ OMX Exchange 

Subsidiaries included statements 

concerning the purpose of and basis for 

its proposed rule change and discussed 

any comments it received on its 

proposed rule change. The text of these 

statements may be examined at the 

places specified in Item IV below. Each 

of the NASDAQ OMX Exchange 

Subsidiaries has prepared summaries, 

set forth in Sections A, B, and C below, 

of the most significant aspects of such 

statements. 

A. Self-Regulatory Organizations’ 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Changes 

1. Purpose 

NASDAQ OMX is proposing to make 

amendments to its Certificate. As 

provided in Articles XI and XII of the 

NASDAQ OMX By-Laws, proposed 

amendments to the Certificate are to be 

reviewed by the Board of Directors of 

each self-regulatory subsidiary of 

NASDAQ OMX, and if any such 

proposed amendment must, under 

Section 19 of the Act and the rules 

promulgated thereunder, be filed with, 

or filed with and approved by, the 

Commission before such amendment 

may be effective, then such amendment 

shall not be effective until filed with, or 

filed with and approved by, the 

Commission, as the case may be. The 

governing boards of BX, the NASDAQ 

Exchange, Phlx, BSECC, and SCCP have 

each reviewed the proposed change and 

determined that it should be filed with 

the Commission.4 The changes to the 

Certificate are limited in scope, and 

under Delaware law, they do not require 

approval by the stockholders of 

NASDAQ OMX. 

Specifically, NASDAQ OMX is 

proposing to restate, without 

amendment, its Certificate. The 

Certificate is composed of a previous 

Restated Certificate of Incorporation 

adopted in 2003, and numerous 

subsequent amendments, which, under 

Delaware law, are adopted as 

freestanding documents. However, 

Delaware law allows the various 

documents comprising a certificate of 

incorporation to be consolidated into a 

single restated certificate upon approval 

of a corporation’s board of directors. 

The change will assist interested 

persons, including NASDAQ OMX 

stockholders and Commission staff, in 

reading the Certificate without having to 

review multiple documents. The 

restated Certificate reflects the deletion 

of both the Certificate of Designations, 

Preferences and Rights of Series D 

Preferred Stock and the Certificate of 

Elimination that was recently filed with 

respect to it.5 Since the latter 

component of the Certificate cancels the 

former, they are both deleted from the 

restated Certificate. 

2. Statutory Basis 

The NASDAQ OMX Exchange 

Subsidiaries believe that their respective 

proposed rule changes are consistent 

with the provisions of Section 6 of the 

Act,6 in general, and with Sections 

6(b)(1) and (b)(5) of the Act,7 in 

particular, in that the proposal enables 

the NASDAQ OMX Exchange 

Subsidiaries 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 

members and persons associated with 

members with provisions of the Act, the 

rules and regulations thereunder, and 

self-regulatory organization rules, 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 


dwashington3 on PROD1PC60 with NOTICES
Federal Register / Vol. 74, No. 76 / Wednesday, April 22, 2009 / Notices 18419 

8 15 U.S.C. 78s(b)(3)(A)(iii). 

9 17 CFR 240.19b–4(f)(3). 10 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3On March 17, 2008, FINRA filed a separate 

proposed rule change, which became effective upon 

filing, to delay the effective date of paragraphs (c) 

and (d) of NASD Rule 2821 until 180 days following 

the Commission’s approval or rejection of the 

substantive proposed rule changes found in this 

filing. See Securities Exchange Act Release No. 

57769 (May 2, 2008), 73 FR 26176 (May 8, 2008) 

(delaying order). Paragraphs (a), (b), and (e) of 

NASD Rule 2821 became effective as originally 

scheduled on May 5, 2008. 

4 Id. 

5See Securities Exchange Act Release No. 57920 

(June 4, 2008); 73 FR 32771 (June 10, 2008) 

(‘‘notice’’ or ‘‘proposal’’). 

6See infra note 9. 

7See Letter from James Wrona, Associate Vice 

President and Associate General Counsel, FINRA, to 

Florence Harmon, Acting Secretary, Commission, 

dated November 12, 2008 (‘‘FINRA’s Response’’). 

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 

will enhance the clarity of NASDAQ 

OMX’s governance documents by 

restating the various documents 

comprising the Certificate as a single 

document. 

B. Self-Regulatory Organizations’ 

Statements on Burden on Competition 

The NASDAQ OMX Exchange 

Subsidiaries do not believe that the 

proposed rule changes 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 Organizations’ 

Statements on Comments on the 

Proposed Rule Changes Received From 

Members, Participants, or Others 

Written comments were neither 

solicited nor received. 

III. Date of Effectiveness of the 

Proposed Rule Changes and Timing for 

Commission Action 

The foregoing rule changes have 

become effective pursuant to Section 

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

subparagraph (f)(3) of Rule 19b–4 

thereunder.9 At any time within 60 days 

of the filing of the respective proposed 

rule change by the applicable NASDAQ 

OMX Exchange Subsidiary, the 

Commission may summarily abrogate 

such rule changes 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 

changes, are 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 

Nos. SR–BX–2009–019, SR–NASDAQ– 

2009–032, SR–Phlx–2009–31 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 

Nos. SR–BX–2009–019, SR–NASDAQ– 

2009–032, SR–Phlx–2009–31. These file 

numbers 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 

changes that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule changes 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 filings also will be available for 

inspection and copying at the principal 

offices 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 Nos. SR–BX–2009– 

019, SR–NASDAQ–2009–032, and SR– 

Phlx–2009–31, and should be submitted 

on or before May 13, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.10

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–9202 Filed 4–21–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59772; File No. SR–FINRA– 

2008–019] 

Self-Regulatory Organizations; 

Financial Industry Regulatory 

Authority, Inc.; Notice of Filing of 

Amendment Nos. 1 and 2 and Order 

Granting Accelerated Approval to a 

Proposed Rule Change, as Modified by 

Amendment Nos. 1 and 2, Relating to 

Sales Practice Standards and 

Supervisory Requirements for 

Transactions in Deferred Variable 

Annuities 

April 15, 2009. 

I. Introduction 

On May 21, 2008, the Financial 

Industry Regulatory Authority, Inc. 

(‘‘FINRA’’) (f/k/a National Association 

of Securities Dealers, Inc. (‘‘NASD’’)) 

filed with the Securities and Exchange 

Commission (‘‘SEC’’ or ‘‘Commission’’), 

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

Securities Exchange Act of 1934 

(‘‘Exchange Act’’) 1 and Rule 19b–4 

thereunder,2 a proposed rule change to 

amend certain provisions of NASD Rule 

2821.3 The proposed rule change would 

modify the rule’s scope and the timing 

of principal review in addition to 

clarifying, through a ‘‘Supplementary 

Material’’ section following the rule 

text, various issues raised by 

commenters.4 The proposed rule change 

was published for comment in the 

Federal Register on June 10, 2008.5 The 

Commission received letters from 14 

commenters in response to the proposed 

rule change.6 On November 12, 2008, 

FINRA responded to the comments 7

and submitted Amendment No. 1 to the 

proposed rule change. On April 1, 2009, 

FINRA submitted Amendment No. 2 to 

the proposed rule change. This order 

provides notice of the proposed rule 


dwashington3 on PROD1PC60 with NOTICES