Federal Register / Vol. 74, No. 90 / Tuesday, May 12, 2009 / Notices 22191 

8 15 U.S.C. 78f(b). 

9 15 U.S.C. 78f(b)(4). 

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

11 17 CFR 240.19b–4(f)(2). 12 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

eliminate the $.12 per contract side 

options transaction charge for customer 

executions in options on NDX, MNX, 

RUT and RMN to remain competitive 

with other exchanges and attract 

additional order flow to the Exchange. 

2. Statutory Basis 

The proposed rule change is 

consistent with Section 6(b) of the 

Securities Exchange Act of 1934 

(‘‘Act’’),8 in general, and furthers the 

objectives of Section 6(b)(4) 9 of the Act 

in particular, in that it is designed to 

provide for the equitable allocation of 

reasonable dues, fees, and other charges 

among Exchange members and other 

persons using its facilities. By 

eliminating the $.12 per contract side 

options transaction charge, the 

Exchange believes that members will 

benefit by not having an options 

transaction charge for customer 

executions in options on RUT, RMN, 

NDX and MNX and the Exchange will 

benefit by attracting order flow. 

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 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 either 

solicited or received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Because the foregoing rule change 

establishes or changes a due, fee, or 

other charge imposed by the Exchange, 

it has become effective pursuant to 

Section 19(b)(3)(A) of the Act 10 and 

subparagraph (f)(2) of Rule 19b–4 11

thereunder. 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 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–Phlx–2009–41 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–Phlx–2009–41. 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 the filing also will be available 

for inspection and copying at the 

principal office of Phlx. 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–Phlx–2009–41 and should 

be submitted on or before June 2, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.12

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–10993 Filed 5–11–09; 8:45 am] 

BILLING CODE P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59858; File No. SR– 

NASDAQ–2009–039] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing of Proposed Rule Change To 

Amend the Certificate of Incorporation 

and By-Laws of The NASDAQ OMX 

Group, Inc. 

May 4, 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 27, 

2009, The NASDAQ Stock Market LLC 

(the ‘‘NASDAQ 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 the NASDAQ 

Exchange. 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 NASDAQ Exchange is filing this 

proposed rule change with regard to 

proposed changes to the Restated 

Certificate of Incorporation (the 

‘‘Certificate’’) and the By-Laws of its 

parent corporation, The NASDAQ OMX 

Group, Inc. (‘‘NASDAQ OMX’’). The 

proposed rule change will be 

implemented as soon as practicable 

following approval by the Commission. 

The text of the proposed rule change is 

available at http:// 

www.cchwallstreet.com/nasdaq, at the 

NASDAQ Exchange’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, the 

NASDAQ Exchange 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 

NASDAQ Exchange has prepared 

summaries, set forth in Sections A, B, 

and C below, of the most significant 

aspects of such statements. 


rwilkins on PROD1PC63 with NOTICES
22192 Federal Register / Vol. 74, No. 90 / Tuesday, May 12, 2009 / Notices 

3 15 U.S.C. 78j–1(m). Notably, ‘‘Staff Directors,’’ 

who are officers of NASDAQ OMX serving on the 

NASDAQ OMX Board, are not considered 

independent under these provisions, and are 

therefore ineligible for service on the Audit 

Committee or Management Compensation 

Committee, or, as discussed below, the newly 

constituted Nominating Committee. 

4NASDAQ Exchange Rule 4350(c)(3). 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

NASDAQ OMX is proposing to make 

certain amendments to its By-Laws to 

make improvements in its governance 

and update several provisions. 

The proposed changes to the By-Laws 

are as follows: 

• Article I is being amended to reflect 

the recent name changes of the 

Philadelphia Stock Exchange and the 

Boston Stock Exchange to NASDAQ 

OMX PHLX, Inc. and NASDAQ OMX 

BX, Inc., respectively. 

• Article III is being amended to 

modify the procedures governing 

proposals by stockholders, including 

proposals by stockholders to nominate 

directors. Specifically, the amendment 

will require a stockholder making a 

proposal to supply more complete 

information about the stockholder’s 

background, including a description of 

any agreement, arrangement, or 

understanding between the stockholder, 

the beneficial owner of the stock, and 

any other persons acting in concert with 

them; a description of any agreement, 

arrangement or understanding 

(including any derivative or short 

positions, profit interests, options, 

warrants, convertible securities, stock 

appreciation or similar rights, hedging 

transactions, and borrowed or loaned 

shares), the effect or intent of which is 

to mitigate loss to, manage risk or 

benefit of share price changes for, or 

increase or decrease the voting power 

of, such stockholder or such beneficial 

owner, with respect to shares of stock of 

NASDAQ OMX; and any other 

information regarding the stockholder 

and beneficial owner that would be 

required to be disclosed in a proxy 

statement under Section 14(a) of the 

Act. These changes are designed to 

provide the NASDAQ OMX Board of 

Directors and its stockholders with 

greater insight into the identity and 

intentions of persons presenting 

stockholder proposals to allow more 

thorough consideration of the merits of 

such proposals. These requirements are 

deemed satisfied, however, in the case 

of a proposal that is validly submitted 

under the rules and regulations 

promulgated under the Act (i.e., SEC 

Rule 14a–8) and included in NASDAQ 

OMX’s proxy. However, compliance 

with the By-Laws or with SEC Rule 14a– 

8 provides the exclusive means for 

stockholders to make proposals. The 

amendments also provide that a 

representative of a stockholder qualified 

to appear at an annual meeting must be 

an officer, manager or partner of the 

stockholder or must have written 

authorization from the stockholder. The 

amendments also make several minor 

clarifying changes to the text of Article 

III. 

• Article IV is being amended to state 

explicitly that the Management 

Compensation Committee and the Audit 

Committee must be composed 

exclusively of independent directors 

within the meaning of the rules of the 

NASDAQ Stock Market that govern 

NASDAQ OMX’s listing (and, in the 

case of the Audit Committee, Section 

10A of the Act).3 Although NASDAQ 

OMX adheres scrupulously to the 

independence requirements imposed by 

the NASDAQ Stock Market and the Act, 

it believes that these requirements 

should be explicitly stated in the ByLaws as well. NASDAQ OMX is also 

removing language making its Chief 

Executive Officer an ex-officio, nonvoting member of the Management 

Compensation Committee. In this 

regard, listing standards of the NASDAQ 

Stock Market require management 

compensation determinations regarding 

executive officers to be made by vote of 

the Board’s independent directors, or by 

vote of or upon the recommendation of 

a committee composed solely of 

independent directors.4 NASDAQ OMX 

has satisfied this requirement by 

submitting compensation decisions to 

the vote of all of NASDAQ OMX’s 

independent directors, but removing the 

Chief Executive Officer as an ex-officio 

director will provide it with flexibility 

to act upon the vote or upon the 

recommendation of the committee. 

• Currently, NASDAQ OMX’s 

Nominating Committee is required to be 

composed of persons who are not 

directors or who are directors not 

standing for re-election. This 

compositional requirement, which 

NASDAQ OMX’s predecessor, The 

Nasdaq Stock Market, Inc., originally 

adopted while it was a wholly owned 

subsidiary of the National Association 

of Securities Dealers (‘‘NASD’’), is 

highly unusual for a public company 

such as NASDAQ OMX. In light of 

NASDAQ OMX’s continued evolution 

into a public company with global 

operations, NASDAQ OMX believes that 

it is appropriate to adopt a standard 

nominating committee structure in 

which the committee is composed 

exclusively of independent directors. 

Under the amended by-law, the 

nominating committee shall consist of 

four or five directors, each of whom 

shall be an independent director within 

the meaning [sic] the rules of the 

NASDAQ Exchange. In addition, the 

number of Non-Industry Directors (i.e., 

Directors without material ties to the 

securities industry) must equal or 

exceed the number of Industry 

Directors, and at least two members of 

the committee must be Public Directors 

(i.e., directors who have no material 

business relationship with a broker or 

dealer, NASDAQ OMX or its affiliates, 

or FINRA). 

• Article VIII is being amended to 

provide that NASDAQ OMX shall 

provide indemnification against 

liability, advancement of expenses, and 

the power to purchase and maintain 

insurance on behalf of persons serving 

as a director, officer, or employee of any 

wholly owned subsidiary of NASDAQ 

OMX to the same extent as 

indemnification, advancement of 

expenses, and the power to maintain 

insurance is provided for directors, 

officers, or employees of NASDAQ 

OMX. Thus, for example, a director of 

one of NASDAQ OMX’s US or Nordic 

exchanges would be entitled to 

indemnification (and advancement of 

expenses) by NASDAQ OMX if made a 

party to a lawsuit to the same extent as 

a director of NASDAQ OMX. Similarly, 

the discretionary authority of NASDAQ 

OMX under Section 8.1(c) of the ByLaws to provide indemnification to 

persons serving as an agent of NASDAQ 

OMX is being extended to persons 

serving as an agent of any wholly owned 

subsidiary of NASDAQ OMX. Article 

VIII is also amended to clarify that any 

repeal, modification or amendment of, 

or adoption of any provision 

inconsistent with, the indemnification 

and advancement of expenses provided 

for in Article VIII will not adversely 

affect the right of any person covered by 

the provision if the act or omission that 

any proceeding arises out of or is related 

to had occurred prior to the time for the 

repeal, amendment, adoption or 

modification. 

• Article IX is being amended to 

modernize the language of the 

provisions dealing with capital stock to 

reflect possible participation in the 

Direct Registration System (the ‘‘DRS’’). 

The DRS provides for the electronic 

registration of eligible securities in an 

investor’s name on the books of the 

transfer agent or corporation, 

eliminating the need for physical stock 

certificates or shares held in book-entry 

form by the beneficial owner’s broker. 


rwilkins on PROD1PC63 with NOTICES
Federal Register / Vol. 74, No. 90 / Tuesday, May 12, 2009 / Notices 22193 

5The existing reference to ‘‘agents’’ in the 

sentence is proposed to be deleted. 

6 15 U.S.C. 78f. 

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

Although under the Delaware General 

Corporation Law, NASDAQ OMX can 

authorize participation in the program 

through a resolution, the various 

amendments to Article IX track more 

closely the language of Section 158 of 

the Delaware General Corporation Law, 

as recently revised, to explicitly 

reference the possibility of capital stock 

in uncertificated form. The 

amendments, however, do not require 

NASDAQ OMX to participate in the 

DRS or to eliminate stock certificates. 

Article XII is being amended to 

conform certain of its provisions more 

closely to corresponding provisions in 

the Amended and Restated By-Laws of 

NYSE Euronext (the ‘‘NYSE Euronext 

By-Laws’’). Article XII contains 

provisions that govern the relationship 

between NASDAQ OMX and each of its 

subsidiaries that is a self-regulatory 

organization. First, the article requires 

NASDAQ OMX’s ‘‘[d]irectors, officers, 

employees, and agents’’ (emphasis 

added) to give due regard to the 

preservation of the independence of 

each self-regulatory subsidiary, not to 

take any actions that would interfere 

with each self-regulatory subsidiary’s 

regulatory functions, to cooperate with 

the Commission, to consent to U.S. 

jurisdiction, and to consent in writing to 

the applicability of these provisions. 

Corresponding provisions of Articles 

VII, VIII, and IX of the NYSE Euronext 

By-Laws, however, do not include the 

ambiguous and potentially expansive 

word ‘‘agent.’’ NASDAQ OMX is 

concerned that a broad construction of 

the term—to include not only parties 

with which it establishes an explicit 

contractual agency relationship, but also 

other service providers such as law 

firms and financial advisors that may 

act on NASDAQ OMX’s behalf on 

certain occasions—may deter some 

parties from providing services to 

NASDAQ OMX. However, in lieu of the 

requirement to obtain specific consents 

from agents, NASDAQ OMX proposes to 

adopt a provision from the NYSE 

Euronext By-Laws providing that 

NASDAQ OMX shall comply with the 

U.S. Federal securities laws and the 

rules and regulations thereunder and 

shall cooperate with the SEC and the 

Self-Regulatory Subsidiaries pursuant to 

and to the extent of their respective 

regulatory authority, and shall take 

reasonable steps necessary to cause its 

agents to cooperate, with the SEC and, 

where applicable, the Self-Regulatory 

Subsidiaries pursuant to their regulatory 

authority. Second, Article XII provides 

that NASDAQ OMX and its officers, 

directors and employees 5 agree to 

maintain an agent for service of process 

in the U.S. By contrast, Article VII of the 

NYSE Euronext By-Laws includes a 

statement that officers, directors and 

employees shall be deemed to agree that 

the Corporation may serve as the U.S. 

agent for service of process. 

Accordingly, NASDAQ OMX proposes 

to adopt this more self-executing 

version. Finally, while the NASDAQ 

OMX By-Laws provide that NASDAQ 

OMX shall take such action as is 

necessary to insure that officers, 

directors and employees consent in 

writing to the applicability of these 

provisions, Article IX of the NYSE 

Euronext By-Laws requires only that 

NYSE Euronext take reasonable steps 

necessary to cause officers, directors, 

and employees to consent. Although 

NASDAQ OMX has begun the process of 

collecting written consents from current 

officers, directors, and employees, it 

believes that the current language may 

be unreasonably demanding as applied 

to a multinational exchange operator 

with over 2,000 employees in over 20 

countries. Accordingly, NASDAQ OMX 

proposes to adopt a version of NYSE 

Euronext’s language, which will require 

reasonable steps to obtain consent from 

both current officers, directors, and 

employees, as well as prospective 

officers, directors, and employees prior 

to their acceptance of a position. 

2. Statutory Basis 

The NASDAQ Exchange believes that 

the proposed rule change is 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 Exchange 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 selfregulatory 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 

mechanism of a free and open market 

and a national market system, and, in 

general, to protect investors and the 

public interest. The proposed changes 

will enhance the clarity of NASDAQ 

OMX’s governance documents and 

improve its Board committee structures. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The NASDAQ Exchange 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 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, 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–2009–039 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–2009–039. This 

file number should be included on the 

subject line if e-mail is used. 


rwilkins on PROD1PC63 with NOTICES
22194 Federal Register / Vol. 74, No. 90 / Tuesday, May 12, 2009 / Notices 

8 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. 

4See Securities Exchange Act Release No. 59229 

(January 12, 2009) 74 FR 3119 (January 16, 2009), 

approving [sic] SR–NYSE–2009–01. 

5See Securities Exchange Act Release No. 59491 

(March 3, 2009) 74 FR 10107 (March 9, 2009) (SR– 

NYSE–2009–20). 

6 15 U.S.C. 78a. 

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 

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 

Number SR–NASDAQ–2009–039, and 

should be submitted on or before June 

2, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.8

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–10994 Filed 5–11–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59864; File No. SR–NYSE– 

2009–44] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by New York 

Stock Exchange LLC Extending a 

Temporary Equity Transaction Fee for 

Shares Executed on the NYSE 

MatchPointSM System, Effective May 1, 

2009 Until June 30, 2009 

May 5, 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 April 29, 

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 extend a 

temporary equity transaction fee for 

shares executed on the NYSE 

MatchPointSM (‘‘NYSE MatchPoint’’ or 

‘‘MatchPoint’’) system, effective May 1, 

2009 until June 30, 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. The text of the proposed rule 

change is available at the Exchange, the 

Commission’s Public Reference Room, 

and http://www.nyse.com. 

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 the 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

On January 7, 2009, the Exchange 

filed with the Securities and Exchange 

Commission (the ‘‘Commission’’) a 

proposed rule change to adopt a 

temporary equity transaction fee for 

shares executed on the NYSE 

MatchPointSM system, effective until 

February 28, 2009 (the ‘‘January 

filing’’).4 On February 26, 2009, the 

Exchange filed with the Commission a 

proposed rule change to extend this 

temporary equity transaction fee until 

April 30, 2009 (the ‘‘March filing’’).5

Through this filing, the Exchange 

proposes to extend this equity 

transaction fee to be effective May 1, 

2009 until June 30, 2009. 

Prior to the January filing, the equity 

transaction fee was $.0015 per share 

executed on the MatchPoint system. In 

the January filing, the Exchange 

proposed 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 

The March filing proposed to 

continue this fee schedule. 

The Exchange believes that the 

extension of the fee schedule until June 

30, 2009 will continue to reward those 

who have been using the MatchPoint 

system for share execution, and will 

provide a continued incentive for new 

participants in MatchPoint. 

It is intended that the MatchPoint fee 

will revert to the equity transaction fee 

of $.0015 per share beginning July 1, 

2009. 

2. Statutory Basis 

The basis under the Securities 

Exchange Act of 1934 (the ‘‘Act’’) 6 for 

the proposed rule change is the 

requirement under Section 6(b)(4) that 

an exchange have rules that provide for 

the equitable allocation of reasonable 

dues, fees and other charges among its 

members and other persons using its 

facilities. The Exchange believes the 

fees are reasonable in that they carry 

forward a reduction in fees that the 

January filing established and that the 

March filing extended, and are equitable 

in that they are available to all members 

who access the MatchPoint system. 

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 Act. 


rwilkins on PROD1PC63 with NOTICES