[Federal Register Volume 77, Number 21 (Wednesday, February 1, 2012)]
[Notices]
[Pages 5067-5068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2131]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-66243; File No. SR-NSX-2012-03]
Self-Regulatory Organizations; National Stock Exchange, Inc.;
Notice of Filing and Immediate Effectiveness of a Proposed Rule Change
To Effectuate an Amendment to Its Amended and Restated Certificate of
Incorporation To Include a Reference to Section 242 of the General
Corporation Law of the State of Delaware
January 26, 2012.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on January 20, 2012, National Stock Exchange, Inc. 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 Exchange. The Commission is publishing this notice
to solicit comment on the proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
National Stock Exchange, Inc. (``NSX[supreg]'' or ``Exchange'')
proposes to effectuate an amendment to its Amended and Restated
Certificate of Incorporation to include a reference to Section 242 of
the General Corporation Law of the State of Delaware.
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 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 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
With this rule change, the Exchange is proposing to effectuate an
amendment to its Amended and Restated Certificate of Incorporation
(``Certificate'') to include a reference to Section 242 of the General
Corporation Law of the State of Delaware (``Delaware Corporation
Law'').
Section 242 of Delaware Corporation Law refers to amendments to
certificates of incorporation after the receipt of payment for
stock.\3\ Section 242 states that, after receipt of payment for stock,
a corporation ``may amend its certificate of incorporation * * * so
long as its certificate of incorporation as amended would contain only
such provisions as it would be lawful and proper to insert in an
original certificate of incorporation filed at the time of the filing
of the amendment.'' \4\ Amended certificates of incorporation must
explicitly reference Section 242 to be deemed acceptable for filing
with the Delaware Secretary of State.
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\3\ 8 Del. C. 1953, 242.
\4\ 8 Del. C. 1953, 242(a).
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On November 28, 2011, the Exchange filed with the Commission, as
part of its Exhibit 5 to a rule filing seeking Commission approval of
the acquisition of the Exchange by CBOE Stock Exchange, LLC, a proposed
form of Certificate. The Certificate in the form
[[Page 5068]]
proposed was approved by the Commission on December 29, 2011.\5\
However, the Certificate in the form proposed failed to contain an
explicit reference to Section 242 of Delaware Corporation Law. Instead,
the last sentence in the first paragraph of the approved Certificate
stated ``* * * [p]ursuant to, and being duly adopted in accordance
with, Section 245 of the General Corporation Law of the State of
Delaware, this * * * Certificate * * * amends and restates the Restated
Certificate of Incorporation in its entirety * * *.''
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\5\ See Securities Exchange Act Release No. 66071 (December 29,
2011) (SR-NSX-2011-14 and SR-CBOE-2011-107).
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On December 30, 2011, the Certificate, in the form approved by the
Commission (i.e., without explicit reference to Section 242), was
submitted for filing to the Delaware Secretary of State. The Delaware
Secretary of State refused to accept the Certificate unless a reference
to Section 242 was added to the text of the Certificate. Such reference
was added and the Certificate, as modified, was accepted by and
successfully filed with the Delaware Secretary of State. As a result,
pursuant the instant rule filing, the Exchange is proposing to amend
the text of the Certificate previously filed with, and approved by, the
Commission by explicitly referencing Section 242 of the Delaware
Corporation Law in the text of the Certificate immediately before the
reference to Section 245. In so doing, the Exchange seeks to fully
comply with Delaware Corporation Law and with the Securities Exchange
Act of 1934 (the ``Act'').
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6(b) of the Act,\6\ in general, and
Section 6(b)(4) of the Act,\7\ in particular, in that it is designed,
among other things, to promote clarity, transparency and full
disclosure, in so doing, 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.
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\6\ 15 U.S.C. 78f(b).
\7\ 15 U.S.C. 78f(b)(4).
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Moreover, the proposed rule change is not discriminatory in that it
is solely administrative and does not affect the rights of any ETP
Holder, does not impact any other provision of the Certificate, and is
consistent with the Commission's recent order approving the
Certificate. The proposed amendment simply adds to the Certificate an
explicit cross-reference to applicable law and consequently constitutes
a technical amendment that relates solely to the administration of the
Exchange and the Exchange's ability to successfully file the
Certificate with the Delaware Secretary of State.
B. Self-Regulatory Organization's Statement on Burden on Competition
The 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.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
The Exchange has neither solicited nor received written comments on
the proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The proposed rule change has taken effect upon filing pursuant to
Section 19(b)(3)(A)(ii) of the Act \8\ and subparagraph (f)(3) of Rule
19b-4 \9\ thereunder, because, as provided in (f)(3), the proposed rule
change is concerned solely with the administration of the self-
regulatory organization. At any time within 60 days of the filing of
the proposed rule change, the Commission summarily may temporarily
suspend 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 Securities and Exchange Act of 1934.
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\8\ 15 U.S.C. 78s(b)(3)(A)(ii).
\9\ 17 CFR 240.19b-4.
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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 email to [email protected]. Please include
File Number SR-NSX-2012-03 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-NSX-2012-03. This file
number should be included on the subject line if email 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 Web site viewing and
printing 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 will also 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 No. SR-NSX-2012-03 and should be
submitted on or before February 22, 2012.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
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\10\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-2131 Filed 1-31-12; 8:45 am]
BILLING CODE 8011-01-P