[Federal Register: January 2, 2009 (Volume 74, Number 1)]
[Notices]
[Page 154-155]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02ja09-62]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-59159; File No. SR-ISE-2008-97]
Self-Regulatory Organizations; International Securities Exchange,
LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule
Change Relating to the Amendment of the International Securities
Exchange Holdings, Inc.'s Certificate of Incorporation
December 23, 2008.
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 December 23, 2008, the International Securities Exchange, LLC (the
``Exchange'' or ``ISE'') 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. ISE has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \3\ and Rule 19b-4(f)(3) thereunder,\4\
which renders the proposal effective upon filing with the Commission.
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)(iii).
\4\ 17 CFR 19b-4(f)(3).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange is proposing to make technical changes to the
certificate of incorporation (the ``Certificate of Incorporation'') of
its parent, International Securities Exchange Holdings, Inc.
(``Holdings''), which will be adopted in connection with a corporate
transaction (the ``Transaction''), in which the ISE Stock Exchange, LLC
(``ISE Stock''), a Delaware limited liability company, will merge with
and into Maple Merger Sub, LLC (``Maple Merger Sub''), a Delaware
limited liability company and a wholly owned subsidiary of Direct Edge
Holdings LLC (``Direct Edge''), with Maple Merger Sub being the
surviving entity.
Certificate of Incorporation
The Exchange is proposing to make a technical change to the
Certificate of Incorporation to: (1) Correct the date of incorporation;
(2) correct the address of Holdings' registered address in the state of
Delaware; and (3) adopt the attestation language on the signature page.
Specifically, the title of the document, Article FIRST and Article
SECOND of the Certificate of Incorporation and the attestation language
would be amended or adopted, as applicable, to read in its entirety as
follows:
Amended and Restated Certificate of Incorporation of International
Securities Exchange Holdings, Inc.
First: The name of the corporation is International Securities
Exchange Holdings, Inc. (the ``Corporation''). The Corporation was
incorporated on November 16, 2004 by filing its Certificate of
Incorporation with the Secretary of State of the State of Delaware
under the name International Securities Exchange Holdings, Inc.
Second: The address of the Corporation's registered office in
the State of Delaware is 160 Greentree Drive, Suite 101, in the City
of Dover, County of Kent, Delaware 19904. The name of its registered
agent at such address is National Registered Agents, Inc.
* * * * *
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been duly adopted in accordance with the
provisions of Sections 242 and 245 of the DGCL and has been executed
by a duly authorized officer of the Corporation this 23rd day of
December, 2008.
Name:------------------------------------------------------------------
Title:-----------------------------------------------------------------
The text of the proposed rule change is available on the Exchange's
Web site http://www.ise.com, at the principal office of the Exchange,
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 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 self-regulatory organization has prepared summaries,
set forth in sections A, B, and C below, of the most significant
aspects of such statements.
[[Page 155]]
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
On December 22, 2008, the Commission approved a rule filing
submitted by the Exchange in connection with the Transaction \5\ which
included the Certificate of Incorporation. The purpose of this rule
filing is to make technical changes to the Certificate of Incorporation
necessary to permit the Exchange and Holdings to effect the
Transaction. The Exchange is proposing to make technical changes to the
Certificate of Incorporation: (1) Correct the date of incorporation;
(2) correct the address of Holdings' registered address in the state of
Delaware; and (3) adopt attestation language on the signature page.
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\5\ Release No. 34-59135 (December 22, 2007); File No. SR-ISE-
2008-85.
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2. Statutory Basis
The basis under the Act for this proposed rule change is the
requirement under Section 6(b)(1) that an exchange be so organized so
as to have the capacity to be able to carry out the purposes of the
Exchange Act and to comply, and (subject to any rule or order of the
Commission pursuant to Section 17(d) or 19(g)(2) of the Exchange Act)
to enforce compliance by its members and persons associated with its
members, with the provisions of the Exchange Act, the rules and
regulations thereunder and the rules of the exchange. The Exchange also
believes this proposed rule change furthers the objective of Section
6(b)(5) that an exchange have rules that, among other things, are
designed to remove impediments to and perfect the mechanism for a free
and open market and a national market system, and, in general, to
protect investors and the public interest. In particular, the proposed
rule change will allow the Exchange to effect the Transaction, which
was approved by the Commission on December 22, 2008.\6\
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\6\ See footnote 5.
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B. Self-Regulatory Organization's Statement on Burden on Competition
The proposed rule change does not impose 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 not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any unsolicited written comments from members or other interested
parties.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become effective pursuant to Section
19(b)(3) of the Act \7\ and Rule 19b-4(f)(3) \8\ thereunder. At any
time within 60 days of the filing of such 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.
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\7\ 15 U.S.C. 78s(b)(3)(A).
\8\ 17 CFR 19b-4(f)(3).
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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 e-mail to rule-comments@sec.gov. Please include
File Number SR-ISE-2008-97 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, Station Place, 100 F Street, NE., Washington,
DC 20549-1090.
All submissions should refer to File Number SR-ISE-2008-97. 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 such filing also will be available for
inspection and copying at the principal office of ISE. 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 publicly available. All
submissions should refer to File Number SR-ISE-2008-97 and should be
submitted on or before January 23, 2009.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\9\
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\9\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-31192 Filed 12-31-08; 8:45 am]
BILLING CODE 8011-01-P