

[Federal Register: August 28, 2006 (Volume 71, Number 166)]
[Notices]               
[Page 50955-50959]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28au06-81]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54333; File No. SR-NASDAQ-2006-021]

 
Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto To 
Modify Certain of Nasdaq's Corporate Governance Standards, Including 
the Definition of Independent Director

August 18, 2006.
    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 July 28, 2006, 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.\3\ On August 7, 2006, Nasdaq filed 
Amendment No. 1 to the proposed rule change.\4\ The Commission is 
publishing this notice to solicit comments on the proposed rule change, 
as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ A similar filing, SR-NASD-2005-105, was filed by The Nasdaq 
Stock Market, Inc. to modify NASD rules on August 31, 2005. SR-NASD-
2005-105 was withdrawn on July 28, 2006. Nasdaq began operating as a 
national securities exchange for Nasdaq-listed securities on August 
1, 2006. See Securities Exchange Act Release No. 53128 (Jan. 13, 
2006), 71 FR 3550 (Jan. 23, 2006) (the ``Exchange Approval Order'').
    \4\ In Amendment No. 1, Nasdaq made corrections to the text of 
the proposed rule change. The changes set forth in Amendment No. 1 
have been incorporated into this Notice.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    Nasdaq proposes to amend Rules 4200(a)(15), IM-4200 and 4350. 
Nasdaq will implement the proposed rule upon approval by the 
Commission.
    The text of the proposed rule change is below. Proposed new 
language is in italics; proposed deletions are in [brackets].\5\
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    \5\ Changes are marked to the rule text that appears in the 
electronic manual of Nasdaq found at http://www.complinet.com/nasdaq.
 These rules became effective on August 1, 2006, when Nasdaq 

commenced operations as a national securities exchange for Nasdaq-
listed securities.
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* * * * *

4200. Definitions.

    (a) For purposes of the Rule 4000 Series, unless the context 
requires otherwise:
    (1)-(14) No change.

[[Page 50956]]

    (15) ``Independent director'' means a person other than an 
executive officer or employee of the company [or its subsidiaries] or 
any other individual having a relationship which, in the opinion of the 
[company's] issuer's board of directors, would interfere with the 
exercise of independent judgement in carrying out the responsibilities 
of a director. The following persons shall not be considered 
independent:
    (A) A director who is, or at any time during the past three years 
was, employed by the company [or by any parent or subsidiary of the 
company];
    (B) A director who accepted or who has a Family Member who accepted 
any [payments] compensation from the company [or any parent or 
subsidiary of the company] in excess of $60,000 during any period of 
twelve consecutive months within the three years preceding the 
determination of independence, other than the following:
    (i) Compensation for board or board committee service;
    [(ii) payments arising solely from investments in the company's 
securities;]
    (ii[i]) compensation paid to a Family Member who is [a non-
executive] an employee (other than an executive officer) of the company 
[or a parent or subsidiary of the company]; or
    (iii[v]) benefits under a tax-qualified retirement plan, or non-
discretionary compensation[;].
    [(v) loans from a financial institution provided that the loans (1) 
were made in the ordinary course of business, (2) were made on 
substantially the same terms, including interest rates and collateral, 
as those prevailing at the time for comparable transactions with the 
general public, (3) did not involve more than a normal degree of risk 
or other unfavorable factors, and (4) were not otherwise subject to the 
specific disclosure requirements of SEC Regulation S-K, Item 404;]
    [(vi) payments from a financial institution in connection with the 
deposit of funds or the financial institution acting in an agency 
capacity, provided such payments were (1) made in the ordinary course 
of business; (2) made on substantially the same terms as those 
prevailing at the time for comparable transactions with the general 
public; and (3) not otherwise subject to the disclosure requirements of 
SEC Regulation S-K, Item 404; or]
    [(vii) loans permitted under Section 13(k) of the Act.]
    Provided, however, that in addition to the requirements contained 
in this paragraph (B), audit committee members are also subject to 
additional, more stringent requirements under Rule 4350(d).
    (C) A director who is a Family Member of an individual who is, or 
at any time during the past three years was, employed by the company 
[or by any parent or subsidiary of the company] as an executive 
officer;
    (D) No change.
    (E) A director of the [listed company] issuer who is, or has a 
Family Member who is, employed as an executive officer of another 
entity where at any time during the past three years any of the 
executive officers of the [listed company] issuer serve on the 
compensation committee of such other entity; or
    (F)-(G) No change.
    (16)-(39) No change.
    (b)-(c) No change.

IM-4200. Definition of Independence--Rule 4200(a)(15)

    It is important for investors to have confidence that individuals 
serving as independent directors do not have a relationship with the 
listed company that would impair their independence. The board has a 
responsibility to make an affirmative determination that no such 
relationships exist through the application of Rule 4200. Rule 4200 
also provides a list of certain relationships that preclude a board 
finding of independence. These objective measures provide transparency 
to investors and companies, facilitate uniform application of the 
rules, and ease administration. Because Nasdaq does not believe that 
ownership of company stock by itself would preclude a board finding of 
independence, it is not included in the aforementioned objective 
factors. It should be noted that there are additional, more stringent 
requirements that apply to directors serving on audit committees, as 
specified in Rule 4350.
    The Rule's reference to the ``company'' includes any parent or 
subsidiary of the company. [a] The term ``parent or subsidiary'' is 
intended to cover entities the issuer controls and consolidates with 
the issuer's financial statements as filed with the Commission (but not 
if the issuer reflects such entity solely as an investment in its 
financial statements). The reference to executive officer means those 
officers covered in SEC Rule 16a-1(f) under the Act. In the context of 
the definition of Family Member under Rule 4200(a)(14), the reference 
to marriage is intended to capture relationships specified in the Rule 
(parents, children and siblings) that arise as a result of marriage, 
such as ``in-law'' relationships.
    The three year look-back periods referenced in paragraphs (A), (C), 
(E) and (F) of the Rule commence on the date the relationship ceases. 
For example, a director employed by the company is not independent 
until three years after such employment terminates.
    For purposes of paragraph (A) of the Rule, employment by a director 
as an executive officer on an interim basis shall not disqualify that 
director from being considered independent following such employment, 
provided the interim employment did not last longer than one year. A 
director would not be considered independent while serving as an 
interim officer. Similarly, for purposes of paragraph (B) of the Rule, 
compensation received by a director for former service as an interim 
executive officer need not be considered as compensation in determining 
independence after such service, provided such interim employment did 
not last longer than one year. Nonetheless, the issuer's board of 
directors still must consider whether such former employment and any 
compensation received would interfere with the director's exercise of 
independent judgment in carrying out the responsibilities of a 
director. In addition, if the director participated in the preparation 
of the company's financial statements while serving as an interim 
executive officer, Rule 4350(d)(2)(A)(iii) would preclude service on 
the audit committee for three years.
    Paragraph (B) of the Rule is generally intended to capture 
situations where [a payment] compensation is made directly to (or for 
the benefit of) the director or a Family Member of the director. For 
example, consulting or personal service contracts with a director or 
Family Member of the director [or political contributions to the 
campaign of a director or a Family Member of the director] would be 
[considered] analyzed under paragraph (B) of the Rule. In addition, 
political contributions to the campaign of a director or a Family 
Member of the director would be considered indirect compensation under 
paragraph (B). Non-preferential payments made in the ordinary course of 
providing business services (such as payments of interest or proceeds 
related to banking services or loans by an issuer that is a financial 
institution or payment of claims on a policy by an issuer that is an 
insurance company), payments arising solely from investments in the 
company's securities and loans permitted under Section 13(k) of the Act 
will not preclude a finding of director independence as long as the 
payments are non-compensatory in nature. Depending on the

[[Page 50957]]

circumstances, a loan or payment could be compensatory if, for example, 
it is not on terms generally available to the public. [Subparagraph (v) 
clarifies that a loan from a financial institution that was exempt from 
specific disclosure pursuant to Instruction 3 to SEC Regulation S-K, 
Item 404(c) will not preclude a finding of director independence. 
Subparagraph (vi) clarifies that certain payments from financial 
institutions will not preclude a finding of director independence. In 
particular, subparagraph (vi) is intended to capture standard, non-
preferential payments made by financial institutions in the ordinary 
course of business such as interest payments made by a bank on 
deposits, certificates of deposits, or savings bonds. Furthermore, 
subparagraph (vi) is intended to capture technical ``payments'' made by 
a financial institution to its customers when the financial institution 
acts as an agent for its customers. For example, when a brokerage firm 
receives dividends for securities held by a customer, it will make a 
``payment'' of the dividend amount to that customer. Likewise, when a 
brokerage firm executes a customer's order to sell the customer's 
securities, it will make a ``payment'' of the proceeds to the customer. 
Subparagraph (vi) clarifies that agency payments, such as those 
described above, shall not preclude a finding of director 
independence.]
    Paragraph (D) of the Rule is generally intended to capture payments 
to an entity with which the director or Family Member of the director 
is affiliated by serving as a partner, controlling shareholder or 
executive officer of such entity. Under exceptional circumstances, such 
as where a director has direct, significant business holdings, it may 
be appropriate to apply the corporate measurements in paragraph (D), 
rather than the individual measurements of paragraph (B). Issuers 
should contact Nasdaq if they wish to apply the Rule in this manner. 
The reference to a partner in paragraph (D) is not intended to include 
limited partners. It should be noted that the independence requirements 
of paragraph (D) of the Rule are broader than SEC Rule 10A-3(e)(8) 
under the Act.
    Under paragraph (D), a director who is, or who has a Family Member 
who is, an executive officer of a charitable organization may not be 
considered independent if the company makes payments to the charity in 
excess of the greater of 5% of the charity's revenues or $200,000. 
However, Nasdaq encourages companies to consider other situations where 
a director or their Family Member and the company each have a 
relationship with the same charity when assessing director 
independence.
    For purposes of determining whether a lawyer is eligible to serve 
on an audit committee, SEC Rule 10A-3 under the Act generally provides 
that any partner in a law firm that receives payments from the issuer 
is ineligible to serve on that issuer's audit committee. In determining 
whether a director may be considered independent for purposes other 
than the audit committee, payments to a law firm would generally be 
considered under Rule 4200(a)(15)(D), which looks to whether the 
payment exceeds the greater of 5% of the recipient's gross revenues or 
$200,000; however, if the firm is a sole proprietorship, Rule 
4200(a)(15)(B), which looks to whether the payment exceeds $60,000, 
applies.
    Paragraph (G) of the Rule provides a different measurement for 
independence for investment companies in order to harmonize with the 
Investment Company Act of 1940. In particular, in lieu of paragraphs 
(A)-(F), a director who is an ``interested person'' of the company as 
defined in Section 2(a)(19) of the Investment Company Act of 1940, 
other than in his or her capacity as a member of the board of directors 
or any board committee, shall not be considered independent.

4350. Qualitative Listing Requirements for Nasdaq National Market and 
Nasdaq Capital Market Issuers Except for Limited Partnerships

    (a)-(c) No change.
    (d) Audit Committee
    (1)-(4) No change.
    (5) Exception.
    At any time when an issuer has a class of common equity securities 
(or similar securities) that is listed on another national securities 
exchange or national securities association subject to the requirements 
of SEC Rule 10A-3 under the Act, the listing of classes of securities 
of a direct or indirect consolidated subsidiary or an at least 50% 
beneficially owned subsidiary of the issuer (except classes of equity 
securities, other than non-convertible, non-participating preferred 
securities, of such subsidiary) shall not be subject to the 
requirements of this paragraph (d).
    (e)-(n) No change.
* * * * *

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
    The purpose of this rule filing is to provide additional clarity 
and transparency to certain Nasdaq corporate governance standards.
    (i) Rule 4200(a)(15)(B)--Compensation Over $60,000
    Nasdaq proposes to modify the definition of independent director in 
Rule 4200(a)(15)(B) to provide that a finding of independence is 
precluded if a director accepts any compensation from the company or 
its affiliates in excess of $60,000 during any consecutive twelve month 
period within the three years prior to the independence determination. 
Under the existing rule, a director's independence is evaluated based 
on payments accepted from the company or its affiliates.
    Nasdaq first proposed a detailed definition of independent director 
in 1999, following the recommendations of the Blue Ribbon Committee on 
Improving the Effectiveness of Corporate Audit Committees.\6\ That 
definition provided that a director would not be considered independent 
if he or she accepted compensation from the corporation or its 
affiliates in excess of $60,000 during the prior fiscal year, other 
than compensation for board service or certain other benefits.\7\
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    \6\ See Report and Recommendations of the Blue Ribbon Committee 
on Improving the Effectiveness of Corporate Audit Committees 
(February 1999).
    \7\ Securities Exchange Act Release No. 42231 (December 14, 
1999), 64 FR 71523 (December 21, 1999).
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    In 2002, following certain corporate scandals, Nasdaq reviewed its 
corporate governance standards and proposed the rule that exists today. 
The existing rule, which was approved in November 2003, precludes a 
finding of independence if a director, or any family member of the 
director, accepts any payments from the company or any parent or 
subsidiary of the company in excess of $60,000 during any period of 
twelve consecutive months within the three years preceding

[[Page 50958]]

the determination of independence.\8\ The change in focus from 
compensation to payments in the rule was intended to address a concern 
that the rule might not capture certain payments that had been 
identified as tainting a director's independence. One such payment 
involved political contributions by a director to the campaign of 
another director's spouse.
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    \8\ Exceptions exist in the current rule for payments arising 
solely from investments in the company's securities, certain loans 
and other payments from a financial institution, and loans permitted 
under Section 13(k) of the Act.
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    Since the rule was approved, however, Nasdaq staff has been 
confronted by several examples of ``payments'' that do not fall within 
the original intent of the rule and which Nasdaq believes unlikely to 
taint a director's independence. For example, in the case of a company 
that is a bank, payments may include amounts such as interest on a 
director savings account, proceeds from the redemption of a savings 
bond, or even the return of the director's deposit. The Commission 
approved rule changes last year that specifically excluded these types 
of bank payments. In addition, in the case of a company that is an 
insurance company, payments could include the payment of claims on a 
director's policy.
    Rather than continuing to codify examples of ``payments'' that 
should be excluded from the rules as they arise, Nasdaq believes that 
the more effective approach is to modify the rule to focus on 
compensation rather than payments. To provide further guidance, Rule 
IM-4200 would provide specific examples of direct and indirect 
compensation that would preclude a director's independence under the 
rule, such as contributions made to the political campaign of a 
director or family member. Based on its experience, Nasdaq believes 
that a revised rule based on compensation rather than payments would 
better capture the types of compensation that bear on a director's 
independence, while still addressing the issues that gave rise to 
concerns about the original rule.
    The comparable rule of the New York Stock Exchange, Inc. (``NYSE'') 
precludes independence if the director or family member has received 
direct compensation above a minimum threshold.\9\ Accordingly, the 
proposed rule change will conform this part of the Nasdaq's definition 
to the NYSE rules, creating more uniformity across market centers with 
respect to the standards for evaluating a director's independence.
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    \9\ Section 303A.02(b)(ii) of the NYSE Listed Company Manual.
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    (ii) Rule IM-4200--Service as a Compensated Interim Officer.
    Nasdaq also proposes to modify the interpretive material to Rule 
4200(a)(15) to provide that past service as a compensated interim 
officer should not preclude a director from being considered 
independent. Nasdaq has received inquiries from issuers who have named 
an independent director as an interim officer until a successor can be 
found. These companies have asked for clarity as to whether, under the 
current rules, serving as an interim officer would preclude a director 
from being considered independent as a result of such service.
    Nasdaq has interpreted the existing rules such that a director 
serving as an interim officer would not be deemed to be a former 
employee of the company. However, concerns have been raised that 
compensation paid to these individuals would disqualify many directors 
from rendering such services. Nasdaq believes that it is appropriate to 
provide additional transparency to companies in this situation and, in 
doing so, to offer broader relief to these companies.
    Companies that seek the services of an independent director as a 
temporary officer typically are responding to an urgent internal 
problem. Furthermore, companies in this position are likely to provide 
compensation to such persons in an amount greater than $60,000. Once a 
permanent replacement is found, and the individual seeks to return to 
``normal'' service as a board member, Nasdaq believes it is unfair to 
penalize the company by preventing such person from serving as an 
independent director for another three years. Nasdaq is proposing a 
clarification to the rule that would address the difficulties faced at 
such times by issuers, especially smaller companies, that need to fill 
key executive slots, and are forced by timing exigencies to turn for 
help to experienced independent directors on their board. Nevertheless, 
if, while acting as an interim officer, the director participated in 
the preparation of the company's financial statements, the director 
would be precluded from serving on the Audit Committee for three years 
under Rule 4350(d)(2)(A)(iii).
    Accordingly, Nasdaq proposes to amend IM-4200 to clarify that after 
the effective date of this rule, an issuer's Board may determine that a 
director who served as an officer of the company on an interim basis 
for up to a year is not precluded from being considered independent 
solely as a result of that service (including service that occurs 
before the approval of this proposed change).\10\ In order to limit 
potential abuse of this exception, however, service in this capacity 
must be limited to not more than one year. Of course, depending upon 
the magnitude of the compensation and the length of service as an 
interim officer, a board could still determine on its own--without 
regard to a ``bright line'' test--that an individual should not be 
considered independent. In this respect, the proposed interpretive 
material reminds companies of the board's obligation to consider such 
service in making an independence determination.
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    \10\ A director would not be considered independent while 
serving as an interim officer. Further, a director could be 
considered independent following such service only if a 
determiantion of independence is not precluded under any other 
provision of Rule 4200(a)(15).
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    NYSE rules also provide that compensated service as an interim 
officer does not disqualify a director from being considered 
independent following such service.\11\ Accordingly, the proposed rule 
change would result in more uniformity across market centers with 
respect to how interim service by directors is treated for independence 
purposes.
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    \11\ Commentary to Section 303A.02(b)(i) and (ii) of the NYSE 
Listed Company Manual.
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    (iii) Other changes.
    Nasdaq also proposes to make other clarifying changes to the 
corporate governance rules. Specifically, Nasdaq proposes to clarify 
that the term ``non-executive employee'' used in Rule 
4200(a)(15)(B)(iii) means an employee other than an executive officer, 
a term defined in the rules by reference to SEC Rule 16a-1(f) under the 
Act. Further, Nasdaq proposes to clarify that references to ``the 
company'' in Rule 4200(a)(15) include any parent or subsidiary of the 
listed company. Finally, Nasdaq proposes to clarify that an exception 
to the audit committee requirements contained in Rule 10A-3(c)(2) under 
the Act for certain issuers that have a listed parent also is 
applicable to Nasdaq's audit committee requirements.
    (iv) Transition.
    Nasdaq will implement the proposed rule change immediately upon 
approval by the Commission. In order to facilitate the transition to 
the new rules, any director that would be considered independent under 
the existing rules prior to the rule change, but that would no longer 
be deemed independent under the new rules, would be permitted to 
continue to serve on the issuer's Board of Directors as an independent 
director

[[Page 50959]]

until no later than 90 days after the approval of this rule filing.\12\
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    \12\ The transition period does not affect an issuer's 
obligation to comply with the requirements related to audit 
committee composition.
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2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of Section 6 of the Act \13\ in general and with Section 
6(b)(5) of the Act,\14\ in particular. Section 6(b)(5) requires that 
Nasdaq's rules be designed to promote just and equitable principles of 
trade, to remove impediments to and perfect the mechanism of a free and 
open market, and to protect investors and the public interest. The 
proposed rule change will benefit investors, issuers' counsel, and 
member firms by providing additional clarity and transparency to 
Nasdaq's corporate governance standards and promoting greater 
uniformity with existing corporate governance standards of the NYSE. 
The additional clarity, transparency, and greater uniformity will also 
reduce administrative costs associated with compliance with Nasdaq's 
corporate governance standards.
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    \13\ 15 U.S.C. 78f.
    \14\ 15 U.S>C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    Nasdaq 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 Nasdaq 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 rule-comments@sec.gov. Please include 

File Number SR-NASDAQ-2006-021 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2006-021. 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. Copies of such 
filing also will be available for inspection and copying at the 
principal office of the Nasdaq. 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-2006-021 and 
should be submitted on or before September 18, 2006.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
 [FR Doc. E6-14194 Filed 8-25-06; 8:45 am]

BILLING CODE 8010-01-P
