32656 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Notices 

1 15 U.S.C. 78s(b)(3)(C). 

2 15 U.S.C. 78s(b)(3)(A). 

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

4 15 U.S.C. 78s(b)(1). 

5 Id. 

6 15 U.S.C. 78s(b)(2). 

7 15 U.S.C. 78f(b)(4). 

than duplicative of, services provided 

pursuant to the advisory agreement of 

any investment company in which the 

Fund of Funds may invest. 

Applicants’ Legal Analysis 

1. Section 12(d)(1)(A) of the Act 

provides that no registered investment 

company (‘‘acquiring company’’) may 

acquire securities of another investment 

company (‘‘acquired company’’) if such 

securities represent more than 3% of the 

acquired company’s outstanding voting 

stock or more than 5% of the acquiring 

company’s total assets, or if such 

securities, together with the securities of 

other investment companies, represent 

more than 10% of the acquiring 

company’s total assets. Section 

12(d)(1)(B) of the Act provides that no 

registered open-end investment 

company may sell its securities to 

another investment company if the sale 

will cause the acquiring company to 

own more than 3% of the acquired 

company’s voting stock, or cause more 

than 10% of the acquired company’s 

voting stock to be owned by investment 

companies and companies controlled by 

them. 

2. Section 12(d)(1)(G) of the Act 

provides that section 12(d)(1) will not 

apply to securities of an acquired 

company purchased by an acquiring 

company if: (a) The acquiring company 

and acquired company are part of the 

same group of investment companies; 

(b) the acquiring company holds only 

securities of acquired companies that 

are part of the same group of investment 

companies, government securities, and 

short-term paper; (c) the aggregate sales 

loads and distribution-related fees of the 

acquiring company and the acquired 

company are not excessive under rules 

adopted pursuant to section 22(b) or 

section 22(c) of the Act by a securities 

association registered under section 15A 

of the Exchange Act or by the 

Commission; and (d) the acquired 

company has a policy that prohibits it 

from acquiring securities of registered 

open-end management investment 

companies or registered unit investment 

trusts in reliance on section 12(d)(1)(F) 

or (G) of the Act. 

3. Rule 12d1–2 under the Act permits 

a registered open-end investment 

company or a registered unit investment 

trust that relies on section 12(d)(1)(G) of 

the Act to acquire, in addition to 

securities issued by another registered 

investment company in the same group 

of investment companies, government 

securities, and short-term paper: (1) 

Securities issued by an investment 

company that is not in the same group 

of investment companies, when the 

acquisition is in reliance on section 

12(d)(1)(A) or 12(d)(1)(F) of the Act; (2) 

securities (other than securities issued 

by an investment company); and (3) 

securities issued by a money market 

fund, when the investment is in reliance 

on rule 12d1–1 under the Act. For the 

purposes of rule 12d1–2, ‘‘securities’’ 

means any security as defined in section 

2(a)(36) of the Act. 

4. Section 6(c) of the Act provides that 

the Commission may exempt any 

person, security, or transaction from any 

provision of the Act, or from any rule 

under the Act, if such exemption is 

necessary or appropriate in the public 

interest and consistent with the 

protection of investors and the purposes 

fairly intended by the policies and 

provisions of the Act. 

5. Applicants state that the proposed 

arrangement would comply with the 

provisions of rule 12d1–2 under the Act, 

but for the fact that the Fund of Funds 

may invest a portion of their assets in 

Other Investments. Applicants request 

an order under section 6(c) of the Act 

for an exemption from rule 12d1–2(a) to 

allow the Fund of Funds to invest in 

Other Investments. Applicants assert 

that permitting the Fund of Funds to 

invest in Other Investments as described 

in the application would not raise any 

of the concerns that the requirements of 

section 12(d)(1) were designed to 

address. 

Applicants’ Condition 

Applicants agree that any order 

granting the requested relief will be 

subject to the following condition: 

Applicants will comply with all 

provisions of rule 12d1–2 under the Act, 

except for paragraph (a)(2) to the extent 

that it restricts any Fund of Funds from 

investing in Other Investments as 

described in the application. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. E9–15999 Filed 7–7–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 60203; File No. SR–NASDAQ– 

2009–053] 

Securities Exchange Act of 1934; In the 

Matter of The NASDAQ Stock Market 

LLC 

June 30, 2009. 

Order of Summary Abrogation 

Notice is hereby given that the 

Securities and Exchange Commission 

(‘‘Commission’’), pursuant to Section 

19(b)(3)(C) of the Securities Exchange 

Act of 1934 (‘‘Act’’),1 is summarily 

abrogating a certain proposed rule 

change of The NASDAQ Stock Market 

LLC (‘‘NASDAQ’’ or ‘‘Exchange’’). 

On June 24, 2009, NASDAQ filed SR– 

NASDAQ–2009–053. The proposed rule 

change establishes a four-month pilot 

program that would reduce transaction 

fees for members that trade equities on 

NASDAQ provided that they also make 

markets in options on the NASDAQ 

OMX PHLX, Inc. (‘‘Phlx’’) options 

exchange. The proposed rule change 

was immediately effective upon filing 

with the Commission pursuant to 

Section 19(b)(3)(A) of the Act.2

Pursuant to Section 19(b)(3)(C) of the 

Act,3 at any time within 60 days of the 

date of filing a proposed rule change 

pursuant to Section 19(b)(1) of the Act,4

the Commission may summarily 

abrogate the change in the rules of the 

self-regulatory organization and require 

that the proposed rule change be re-filed 

in accordance with the provisions of 

Section 19(b)(1) of the Act 5 and 

reviewed in accordance with Section 

19(b)(2) of the Act,6 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. 

NASDAQ proposes to offer a reduced 

transaction fee for securities listed on 

NASDAQ and the New York Stock 

Exchange LLC (‘‘NYSE’’) only to 

member firms that: (1) Make markets in 

400 or more options classes as a 

Specialist, Streaming Quote Trader, or 

Remote Streaming Quote Trader on 

Phlx; and (2) add average daily volume 

of 35 million shares of liquidity on 

NASDAQ. Member firms meeting these 

criteria would pay a reduced transaction 

fee of $0.0027 per share executed on 

NASDAQ for securities listed on 

NASDAQ or NYSE. The Commission is 

concerned about whether the proposal 

is consistent with the statutory 

requirements applicable to a national 

securities exchange under the Act, 

including, among other provisions, 

Section 6(b)(4) of the Act,7 which 

requires that the rules of a national 

securities exchange provide for the 

equitable allocation of reasonable dues, 

fees, and other charges among its 

members and issuers and other parties 

mstockstill on DSKH9S0YB1PROD with NOTICES

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Notices 32657 

8 15 U.S.C. 78f(b)(5). 

9 15 U.S.C. 78f(b)(8). 

10 Id. 

11 15 U.S.C. 78s(b)(3)(C). 

12 15 U.S.C. 78s(b)(1). 

13 15 U.S.C. 78s(b)(2). 

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

2 17 CFR 240.19b–4. 

using its facilities; Section 6(b)(5) of the 

Act,8 which requires, among other 

things, that the rules of a national 

securities exchange not be designed to 

permit unfair discrimination between 

customers, issuers, brokers, or dealers; 

and Section 6(b)(8) of the Act,9 which 

requires that the rules of a national 

securities exchange do not impose any 

burden on competition not necessary or 

appropriate in furtherance of the Act. 

Accordingly, the Commission believes 

that the procedures provided by Section 

19(b)(2) of the Act 10 will provide a more 

appropriate mechanism for determining 

whether the proposed rule change is 

consistent with the Act. Therefore, the 

Commission finds that it is appropriate 

in the public interest, for the protection 

of investors, and otherwise in 

furtherance of the purposes of the Act, 

to abrogate the proposed rule change. 

It is therefore ordered, pursuant to 

Section 19(b)(3)(C) of the Act,11 that File 

No. SR–NASDAQ–2009–053, be and 

hereby is, summarily abrogated. If 

NASDAQ chooses to re-file the 

proposed rule change, it must do so 

pursuant to Sections 19(b)(1) 12 and 

19(b)(2) of the Act.13

By the Commission. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. E9–15998 Filed 7–7–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[File No. 500–1] 

In the Matter of GenX Corporation; 

Order of Suspension of Trading 

July 2, 2009. 

It appears to the Securities and 

Exchange Commission that there is a 

lack of current and accurate information 

concerning the securities of GenX 

Corporation because of questions about 

the accuracy and adequacy of publicly 

disseminated information appearing in 

stock promotional materials, and 

elsewhere, concerning among other 

things the company’s purported 

partnerships and other relationships 

with certain individuals and entities. 

The Commission is of the opinion that 

the public interest and the protection of 

investors require a suspension of trading 

in the securities of the company listed 

above. 

Therefore, it is ordered, pursuant to 

Section 12(k) of the Securities Exchange 

Act of 1934, that trading in the 

securities of the above listed company is 

suspended for the period from 9:30 a.m. 

EDT on July 2, 2009, through 11:59 p.m. 

EDT, on July 16, 2009. 

By the Commission. 

Jill M. Peterson, 

Assistant Secretary. 

[FR Doc. E9–16040 Filed 7–2–09; 4:15 pm] 

BILLING CODE P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60186; File No. SR– 

NASDAQ–2009–056] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing of a Proposed Rule Change To 

Adopt Rules To Implement the Options 

Order Protection and Locked/Crossed 

Market Plan 

June 29, 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 June 23, 

2009, The NASDAQ Stock Market LLC 

(‘‘NASDAQ’’) 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 NASDAQ. 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 rules 

to implement the Options Order 

Protection and Locked/Crossed Market 

Plan (the ‘‘Plan’’), and to delete 

provisions which will no longer be 

applicable following adoption of the 

Plan. The text of the proposed rule 

change is available at http:// 

nasdaqomx.cchwallstreet.com/, at 

NASDAQ’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, 

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 

On May 7, 2008, NASDAQ filed an 

executed copy of the Options Order 

Protection and Locked/Crossed Market 

Plan (‘‘Plan’’), joining all other approved 

options markets in proposing the Plan. 

The Plan requires each options 

exchange to adopt rules implementing 

various requirements specified in the 

Plan. This proposal is designed to fulfill 

that obligation. 

Background 

The Plan will replace the current Plan 

for the Purpose of Creating and 

Operating an lntermarket Option 

Linkage (‘‘Linkage Plan’’). That plan 

requires its participant exchanges to 

operate a stand-alone system or 

‘‘Linkage’’ for sending order-flow 

between exchanges to limit tradethroughs. The Options Clearing 

Corporation (‘‘OCC [sic]) operates the 

Linkage system (the ‘‘System’’). The 

Linkage rules provide for unique types 

of Linkage orders, with a complicated 

set of requirements as to who may send 

such orders and under what conditions. 

Before a market maker can trade through 

another exchange’s quote, it first must 

send a Linkage order and then wait 

three seconds for a response. 

While the Linkage largely has 

operated satisfactorily, it is under 

significant strain. When the 

Commission approved the Linkage Plan 

in 2000, average daily volume (‘‘ADV’’) 

in the options market was 

approximately 2.6 million contracts 

across all exchanges. Now the ADV has 

increased four-fold to more than 10.8 

million contracts, putting added strain 

on the ability of market makers to 

comply with the complex Linkage rules. 

At the same time, the options markets 

have been moving towards quoting in 

pennies. This greatly increases the 

number of price changes in an option, 

giving rise to greater chances of tradethroughs and missing markets as market 

makers send Linkage orders and have to 

wait three seconds for a response. 

Based upon experience in the equities 

markets following the adoption of 

Regulation NMS in 2005, the options 

exchanges have determined to replace 

mstockstill on DSKH9S0YB1PROD with NOTICES