80 FR 17801 - Self-Regulatory Organizations; National Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change in Connection With the Amended and Restated Certificate of Incorporation of National Stock Exchange Holdings, Inc., the Exchange's Parent Corporation, and the Amended and Restated Certificate of Incorporation of the Exchange

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 80, Issue 63 (April 2, 2015)

[Federal Register Volume 80, Number 63 (Thursday, April 2, 2015)]
[Notices]
[Pages 17801-17803]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-07518]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-74597; File No. SR-NSX-2015-01]


Self-Regulatory Organizations; National Stock Exchange, Inc.; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change in 
Connection With the Amended and Restated Certificate of Incorporation 
of National Stock Exchange Holdings, Inc., the Exchange's Parent 
Corporation, and the Amended and Restated Certificate of Incorporation 
of the Exchange

March 27, 2015.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Exchange Act'' or ``Act'') \1\ and Rule 19b-4 thereunder,\2\ 
notice is hereby given that on March 19, 2015, National Stock Exchange, 
Inc. (``NSX[supreg]'' 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 
substantially prepared by the Exchange. The Exchange has designated 
this rule proposal as ``non-controversial'' pursuant to Section 
19(b)(3)(A) of the Act \3\ and Rule 19b-4(f)(6)(iii) thereunder.\4\ The 
Commission is publishing this notice to solicit comments 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.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6)(iii).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange is filing the instant rule amendment to effectuate 
ministerial, non-substantive amendments to (i) the certificate of 
incorporation of National Stock Exchange Holdings, Inc. (``NSX 
Holdings''), a Delaware corporation that owns all of the issued and 
outstanding shares of NSX; and (ii) the certificate of incorporation of 
NSX. The text of the proposed change to the NSX Holdings certificate of 
incorporation is attached as Exhibit 5A and the text of the proposed 
change to the NSX certificate of incorporation is attached as Exhibit 
5B.

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

[[Page 17802]]

statements concerning the purpose of, and statutory 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
    The Exchange is proposing to make ministerial, non-substantive 
amendments to the certificates of incorporation of NSX Holdings and of 
NSX. The Exchange is proposing these amendments in order to satisfy the 
requirements of the Delaware General Corporation Law (the ``DGCL'') and 
correct technical defects in those documents. The Exchange previously 
submitted to the Commission (i) a proposed ``Second Amended and 
Restated Certificate of Incorporation for National Stock Exchange 
Holdings, Inc.'' (the ``Holdings Amended Certificate''); and (ii) a 
proposed ``Second Amended and Restated Certificate of Incorporation for 
National Stock Exchange, Inc.'' (the ``NSX Amended Certificate''). Both 
of these documents were submitted to the Commission as part of a rule 
filing seeking approval of a transaction in which NSX Holdings 
purchased all of the outstanding shares of NSX from the CBOE Stock 
Exchange, LLC.\5\ The Commission granted its approval of the proposed 
transaction on February 13, 2015 \6\ and the transaction closed on 
February 18, 2015.
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    \5\ See Securities Exchange Act Release No. 73944 (December 24, 
2014), 80 FR 85 (January 2, 2015) (SR-NSX-2014-017).
    \6\ See Securities Exchange Act Release No. 74270 (February 13, 
2015), 80 FR 9286 (February 20, 2015) (``Order Granting Approval of 
Proposed Rule Change in Connection With a Proposed Transaction in 
Which National Stock Exchange Holdings, Inc. Will Acquire Ownership 
of the Exchange from the CBOE Stock Exchange, LLC'').
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    In connection with filing the Holdings Amended Certificate and the 
NSX Amended Certificate with the Delaware Secretary of State, the 
Exchange became aware that the titles of both documents, as filed with 
and approved by the Commission, were not correct and would not be 
acceptable for filing. Specifically, the Holdings Amended Certificate 
was incorrectly titled as the ``Second Amended and Restated Certificate 
of Incorporation'' because, as described below, a prior amendment to 
the Holdings certificate of incorporation through a ``Certificate of 
Amendment to the Certificate of Incorporation'' (the ``Certificate of 
Amendment'') did not constitute an amendment and restatement of the NSX 
Holdings certificate of incorporation under the DGCL. Accordingly, as 
proposed, the Holdings Amended Certificate will be entitled ``Amended 
and Restated Certificate of Incorporation for National Stock Exchange 
Holdings, Inc.'' The NSX Amended Certificate will be entitled ``Amended 
and Restated Certificate of Incorporation of National Stock Exchange, 
Inc.'' because the Exchange had previously filed with the Delaware 
Secretary of State an amended and restated certificate of incorporation 
which would have been deemed a ``second'' amended and restated 
certificate of incorporation, although it had not been titled as such. 
The Exchange also proposes to make conforming amendments to the text of 
each document.
    NSX Holdings was incorporated in the State of Delaware on August 
19, 2014. The original certificate of incorporation for NSX Holdings 
was amended on October 2, 2014 with the filing of the Certificate of 
Amendment with the Delaware Secretary of State. The Certificate of 
Amendment increased the total number of shares of common stock that NSX 
Holdings was authorized to issue from 10,000 shares to 100,000 shares 
with a par value of $0.01 but made no other changes to the certificate 
of incorporation. Prior to the filing of the Holdings Amended 
Certificate with the Delaware Secretary of State, the Exchange became 
aware that, under the DGCL, the document should properly be entitled 
``Amended and Restated Certificate of Incorporation'' because it seeks 
to: (i) Integrate into a single instrument all of the provisions of NSX 
Holdings' certificate of incorporation and the Certificate of 
Amendment; and (ii) further amend NSX Holdings' certificate of 
incorporation.\7\ Since NSX Holdings had not previously filed an 
``Amended and Restated Certificate of Incorporation'' with the Delaware 
Secretary of State, but had only filed the Certificate of Amendment 
increasing the authorized shares that NSX Holdings was permitted to 
issue, the Holdings Amended Certificate in its present form, as filed 
with and approved by the Commission, would not be accepted for filing. 
Accordingly, the Exchange seeks approval for NSX Holdings to modify the 
form of the Holdings Amended Certificate that it proposes to file with 
the Delaware Secretary of State by changing the title and making 
certain conforming amendments in the text of the document. The Exchange 
also proposes to eliminate references in the introductory paragraph of 
the Holdings Amended Certificate to the October 2, 2014 amendment of 
the original certificate of incorporation through the Certificate of 
Amendment, because such references are not necessary for purposes of 
the DGCL.
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    \7\ Specifically, Section 245(a) of the DGCL provides that ``[a] 
corporation may, whenever desired, integrate into a single 
instrument all of the provisions of its certificate of incorporation 
which are then in effect and operative as a result of there having 
theretofore been filed with the Secretary of State [one] or more 
certificates or other instruments . . . and it may at the same time 
also further amend its certificate of incorporation by adopting a 
restated certificate of incorporation.''
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    With respect to the NSX Amended Certificate, the Exchange became 
aware that entitling it the ``Second Amended and Restated Certificate 
of Incorporation'' was not correct because a document meeting the 
definition of a second amended and restated certificate of 
incorporation had previously been filed with the Delaware Secretary of 
State, even though it had not been specifically entitled as such.\8\ On 
February 18, 2015, the NSX Amended Certificate, in the form approved by 
the Commission was submitted for filing to the Delaware Secretary of 
State. The Delaware Secretary of State refused to accept the NSX 
Amended Certificate unless it was modified to eliminate the reference 
to it being the ``Second'' Amended and Restated Certificate of 
Incorporation. The title of the document was changed and conforming 
modifications were made to the text. The NSX Amended Certificate was 
accepted by and successfully filed with the Delaware Secretary of 
State.
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    \8\ On December 30, 2011, the Exchange filed an ``Amended and 
Restated Certificate of Incorporation of National Stock Exchange, 
Inc.'' with the Delaware Secretary of State. As stated therein, the 
original Certificate of Incorporation was filed on December 12, 2005 
and was restated on June 29, 2006.
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    Accordingly, the Exchange is proposing to amend the NSX Amended 
Certificate previously filed with, and approved by, the Commission by 
entitling the NSX Amended Certificate as the ``Amended and Restated 
Certificate of Incorporation of National Stock Exchange, Inc.'' and 
making conforming amendments to the text of the document. In so doing, 
the Exchange seeks to fully comply with DGCL and with the Exchange Act. 
The Exchange notes that the proposed changes to the Holdings Amended 
Certificate and the NSX Amended Certificate are

[[Page 17803]]

ministerial and do not affect the substance of either document.
2. Statutory Basis
    The Exchange believes that its rule proposal is consistent with 
Section 6(b) of the Exchange Act, in general, and Section 6(b)(5) of 
the Exchange Act, in particular, because the proposed change will align 
the charter documents of NSX Holdings and of the Exchange with the 
specific requirements of the DGCL. The Exchange's proposal to make non-
substantive changes to the Holdings Amended Certificate and the NSX 
Amended Certificate furthers the purposes of Section 6(b)(5) of the Act 
to, among other things, 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. The proposed changes are ministerial, do not affect 
the substance of either document and are necessary to assure that 
charter documents of NSX Holdings and of the Exchange meet the Delaware 
statutory requirements.

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 
for the furtherance of the Act. The proposed rule change is not 
designed to address any competitive issue in the U.S. securities 
markets or have any impact on competition in those markets because it 
is intended to correct technical defects in the form of the 
certificates of incorporation of NSX Holdings and of the Exchange.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    The Exchange has not solicited or received comments on the proposed 
rule change from market participants or others.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the foregoing proposed rule change does not:
    A. Significantly affect the protection of investors or the public 
interest;
    B. impose any significant burden on competition; and
    C. become operative for 30 days from the date on which it was 
filed, or such shorter time as the Commission may designate, it has 
become effective pursuant to Section 19(b)(3)(A) of the Act \9\ and 
Rule 19b-4(f)(6) \10\ thereunder.
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    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(6).
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    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 Act. If the Commission 
takes such action, the Commission will institute proceedings to 
determine whether the proposed rule change should be approved or 
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 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-2015-01 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NSX-2015-01. 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 
10:00 a.m. and 3:00 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-NSX-2015-01 and should be 
submitted on or before April 23, 2015.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2015-07518 Filed 4-1-15; 8:45 am]
BILLING CODE CODE 8011-01-P