

[Federal Register: April 24, 2007 (Volume 72, Number 78)]
[Notices]               
[Page 20395-20396]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ap07-113]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55642; File No. SR-NASDAQ-2006-032]

 
Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing of Amendment No. 3 and Order Granting Accelerated 
Approval of a Proposed Rule Change, as Modified by Amendments No. 1, 2, 
and 3 Thereto, To Revise The Nasdaq Capital Market Listing Requirements

April 18, 2007.

I. Introduction

    On August 23, 2006, The NASDAQ Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to revise certain listing requirements applicable 
to the Nasdaq Capital Market (``NCM''). On August 28, 2006, Nasdaq 
filed Amendment No. 1 (``Amendment No. 1'') to the proposed rule 
change.\3\ The proposed rule change, as amended by Amendment No. 1, was 
published for comment in the Federal Register on September 5, 2006.\4\ 
The Commission received no comments on the proposal, as amended by 
Amendment No. 1. On December 4, 2006, Nasdaq filed Amendment No. 2 
(``Amendment No. 2'') to the proposed rule change.\5\ On February 15, 
2007, Nasdaq filed Amendment No. 3 (``Amendment No. 3'') to the 
proposed rule change.\6\ This order provides notice of Amendment No. 3 
and approves the proposed rule change on an accelerated basis, as 
amended.
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    \1\15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b 4.
    \3\ In Amendment No. 1, Nasdaq made clarifying changes to the 
rule text in the NCM convertible debt listing standards. Nasdaq also 
made clarifying changes to the purpose section regarding convertible 
debt, rights and warrants, and non-Canadian foreign securities and 
American Depository Receipts.
    \4\ See Securities Exchange Act Release No. 54378 (August 28, 
2006), 71 FR 52351 (September 5, 2006) (``Notice'').
    \5\ In Amendment No. 2, Nasdaq made minor clarifying changes to 
the purpose section to explain the application of the new NCM 
listing standards as they relate to the grace period for non-
compliance with the bid requirement pursuant to Nasdaq Rules 
4310(c)(8)(D), 4320(e)(2)(E)(ii), and 4450(i). This is a technical 
amendment and is not subject to notice and comment.
    \6\ In Amendment No. 3, Nasdaq amended its initial and 
continuing listing standards for convertible debt to require that 
current last sale information be available in the United States for 
the underlying security into which a convertible debt issue is 
convertible.
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II. Discussion

    Nasdaq proposes to increase the initial and continued listing 
requirements for companies seeking to list, or that are already listed, 
on the NCM, as set forth in Nasdaq Rule 4310 (for domestic and Canadian 
securities) and Nasdaq Rule 4320 (for non-Canadian foreign securities 
and American Depositary Receipts).\7\
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    \7\ For a full description of the proposed rule change, see 
Notice, supra note 4 and Amendments No. 2 and 3, supra notes 5 and 
6.
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    The Commission finds that these proposed changes are consistent 
with Section 6(b) of the Act,\8\ and the rules and regulations 
thereunder applicable to a national securities exchange.\9\ In 
particular, the Commission finds that these proposed rule changes are 
consistent with Section 6(b)(5) of the Act,\10\ which requires, among 
other things, that the Exchange'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 a national market system, and, 
in general, to protect investors and the public interest.
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    \8\ 15 U.S.C. 78f(b).
    \9\ In approving this proposal, as amended, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. 15 U.S.C. 78c(f).
    \10\ 15 U.S.C. 78f(b)(5).
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    The development and enforcement of adequate standards governing the 
initial listing and maintenance of listing of securities is an activity 
of critical importance to financial markets and the investing public. 
Listing standards serve as a means for a marketplace to screen issuers 
and to provide listed status only to bona fide companies with 
sufficient float, investor base, and trading interest to maintain fair 
and orderly markets. Once an issuer has been approved for initial 
listing, the maintenance criteria allow a marketplace to monitor the 
status and trading characteristics of that issuer to ensure that it 
continues to meet standards for market depth and liquidity.
    The changes to the continued listing requirements will be effective 
30 days after the proposed rule change is approved by the Commission. 
Nasdaq represents that as of February 9, 2006, it is not aware of any 
issuer currently listing on NCM that would fail to meet the new 
continued listing requirements.\11\ In the case of

[[Page 20396]]

companies applying for initial listing, the new requirements will be 
effective immediately upon Commission approval of this proposed rule 
change for companies that applied after August 23, 2006, the date this 
proposed rule change was filed with the Commission. Companies that 
applied for listing prior to August 23, 2006 would be allowed to 
qualify under the prior standards, provided that they complete the 
listing process not later than 30 days after the proposed rule change 
is approved by the Commission. The Commission believes this 
implementation schedule is reasonable, and provided adequate notice to 
prospective applicants for listing.
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    \11\ See letter from Arnold Golub, Associate General Counsel, 
Nasdaq, to Elizabeth K. King, Associate Director, Division 
(``Division''), Commission on February 12, 2007; see also letter 
from Arnold Golub, Associate General Counsel, Nasdaq, to Elizabeth 
K. King, Associate Director, Division, Commission on November 7, 
2006.
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III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning Amendment No. 3, including whether Amendment No. 3 
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 No. SR-NASDAQ-2006-032 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-2006-032. 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-2006-032 and should be submitted on or before May 
15, 2007.

IV. Accelerated Approval

    Pursuant to Section 19(b)(2) of the Act,\12\ the Commission finds 
good cause to approve the proposal, as amended, prior to the thirtieth 
day after the amended proposal is published for comment in the Federal 
Register. Amendment No. 3 requires that convertible debt securities 
listed on the NCM have current last sale information available in the 
United States for the underlying security into which a convertible debt 
issue is convertible. Accelerating approval of the proposal, as 
modified by Amendment No. 3, would avoid delay in strengthening the 
initial and continued listing standards of the NCM, thereby benefiting 
investors and the public. Accordingly, the Commission finds good cause 
to accelerate approval of the amended proposal prior to the thirtieth 
day after publication in the Federal Register.
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    \12\ 15 U.S.C. 78s(b)(2).
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\13\ that the proposed rule change (SR-NASDAQ-2006-032), as 
modified by Amendments No. 1, 2, and 3, is approved on an accelerated 
basis.
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    \13\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-7729 Filed 4-23-07; 8:45 am]

BILLING CODE 8010-01-P
