
[Federal Register: May 19, 2009 (Volume 74, Number 95)]
[Notices]               
[Page 23456-23458]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19my09-90]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59915; File No. SR-NASDAQ-2009-040]

 
Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change to 
the Nasdaq Listing Rules To Conform Those Rules With the Prior 
Marketplace Rules and Make Certain Technical Corrections

May 13, 2009.
    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 April 27, 2009, The NASDAQ Stock Market LLC (``Nasdaq'') filed with 
the Securities and Exchange Commission (``Commission'')

[[Page 23457]]

the proposed rule change as described in Items I and II below, which 
Items have been prepared by Nasdaq. Nasdaq has designated the proposed 
rule change as effecting a change described under Rule 19b-4(f)(6) 
under the Act,\3\ 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\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    Nasdaq proposes to modify the Nasdaq Listing Rules to conform those 
rules with the prior Marketplace Rules and make certain technical 
corrections. The text of the proposed rule change is available from 
Nasdaq's Web site at http://nasdaq.cchwallstreet.com, at Nasdaq's 
principal office, 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, 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
    On March 12, 2009, Nasdaq filed a proposed rule change to revise 
the rules relating to the qualification, listing, and delisting of 
companies listed on, or applying to list on, Nasdaq to improve the 
organization of the rules, eliminate redundancies and simplify the rule 
language.\4\ These rules (the ``New Listing Rules'') were effective 
April 13, 2009. Nasdaq has observed that the March filing introduced 
two inadvertent changes in the New Listing Rules. This filing modifies 
those rules to revert to the requirements as they previously existed 
\5\ and makes other technical and clarifying corrections to the rules.
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    \4\ Securities Exchange Act Release No. 59663 (March 31, 2009), 
74 FR 15552 (April 6, 2009) (SR-NASDAQ-2009-018).
    \5\ The text of Nasdaq's prior rules is included in Exhibit 5B 
of SR-NASDAQ-2009-018, supra note 4, available at: http://
nasdaq.cchwallstreet.com/NASDAQ/pdf/nasdaq-filings/2009/SR-NASDAQ-
2009-018.pdf.
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    Specifically, Nasdaq proposes to modify Rule 5405(b)(3)(A) to 
correct the requirement for companies seeking to list on the Nasdaq 
Global Market under the Market Value Standard. Previously, under Rule 
4420(c)(6)(A), a currently traded company that applied to list under 
this standard was required to meet the market value of listed 
securities requirement and the bid price requirement for 90 consecutive 
trading days prior to applying for listing. As adopted in Rule 
5405(b)(3)(A), this requirement was inadvertently changed to 90 
consecutive calendar days.
    In addition, Nasdaq proposes to modify Rules 5250(d) and 5615 and 
IM-5615-3 to allow a Foreign Private Issuer to follow its home country 
practice in lieu of the requirement to distribute interim and annual 
reports. Previously, the provision allowing Foreign Private Issuers to 
follow their home country practice applied to all of Rule 4350 (subject 
to certain specified exceptions), including the requirement to 
distribute reports set forth in prior Rule 4350(b).\6\ In the New 
Listing Rules, while most of the requirements of Rule 4350 were moved 
to the Rule 5600 Series, the requirement to distribute reports was 
moved to Rule 5250(d). However, no corresponding cross-reference was 
included to specify the ability of a Foreign Private Issuer to follow 
its home country practice in lieu of this requirement. The proposed 
rule change would correct that omission.
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    \6\ See prior Rule 4350(a)(1). Note that under this rule, as 
with Rule 5615(a)(3), a foreign private issuer was required to 
comply with the requirement to disclose the receipt of an audit 
opinion that expresses doubt about the ability of the company to 
continue as a going concern, which was contained in prior Rule 
4350(b)(1)(B).
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    Nasdaq also proposes to add a new Rule 5250(f), clarifying that 
companies listed on Nasdaq are required to pay their listing fees as a 
condition to continued listing.\7\ This proposed requirement, which was 
previously contained in Rules 4310(c)(13) and 4320(e)(11), would be 
analogous to the requirement contained in Rule 5210(d) applicable to 
companies applying to list on Nasdaq.
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    \7\ Although New Listing Rules 5400 and 5500 contain the 
requirement for listed companies to pay fees, Nasdaq believes it 
would be more transparent to also include this requirement in the 
list of obligations for listed companies.
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    Finally, Nasdaq proposes to make certain technical corrections. 
First, Nasdaq proposes to modify Rule 5255, relating to Direct 
Registration Programs, to eliminate a provision that expired on March 
31, 2009. In addition, Nasdaq proposes to correct certain typographical 
errors, such as adding omitted words, deleting repeated and unnecessary 
words, renumbering certain provisions, and correcting capitalization, 
spacing, punctuation and cross references in Rules 5000, 5600, 5615, 
5635, 5740, 5820, and 5900, IM-5615-2 and IM-5615-3.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of Section 6 of the Act,\8\ in general and with Sections 
[sic] 6(b)(5) of the Act,\9\ in particular in that it is designed to 
prevent fraudulent and manipulative acts and practices, to promote just 
and equitable principles of trade, to foster cooperation and 
coordination with persons engaged in regulating, clearing, settling, 
processing information with respect to, and facilitating transactions 
in securities, 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 rule change is 
designed to revert to the previously approved requirements of certain 
listing standards that were inadvertently changed when adopting the New 
Listing Rules and correct typographical errors in the rules.
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    \8\ 15 U.S.C. 78f.
    \9\ 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

    Because the proposed rule change: (i) Does not significantly affect 
the protection of investors or the public interest; (ii) does not 
impose any significant burden on competition; and (iii) does not become 
operative for 30 days after the date of the filing, or such shorter 
time as the Commission may designate if consistent with the protection 
of investors and the public interest, the proposed rule change has 
become effective pursuant to Section

[[Page 23458]]

19(b)(3)(A) of the Act \10\ and Rule 19b-4(f)(6) thereunder.\11\
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    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) normally may 
not become operative prior to 30 days after the date of filing.\12\ 
However, Rule 19b-4(f)(6)(iii) \13\ permits the Commission to designate 
a shorter time if such action is consistent with the protection of 
investors and the public interest. Nasdaq has requested that the 
Commission waive the 30-day operative delay. Nasdaq requests this 
waiver so that these corrections can be immediately operative, 
eliminating any potential confusion caused by the unintended changes in 
the New Listing Rules. Nasdaq further believes that the proposed rule 
change does not significantly affect the protection of investors or the 
public interest because it merely conforms the recently adopted Nasdaq 
listing rules with the previously approved Nasdaq rules and corrects 
typographical errors.
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    \12\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-
4(f)(6)(iii) requires that a self-regulatory organization submit to 
the Commission written notice of its intent to file the proposed 
rule change, along with a brief description and text of the proposed 
rule change, at least five business days prior to the date of filing 
of the proposed rule change, or such shorter time as designated by 
the Commission. Nasdaq has satisfied this requirement.
    \13\ Id.
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    The Commission notes that the changes being proposed do not present 
any new regulatory issues. The changes simply conform recently revised 
listing rules to previously approved rules, correct typographical 
errors, and make certain clarifying changes. For these reasons, the 
Commission believes that waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest, 
and designates the proposed rule change to be operative upon filing 
with the Commission.\14\
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    \14\ For the purposes only of waiving the 30-day operative 
delay, the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of the 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.

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-NASDAQ-2009-040 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2009-040. 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 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 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-2009-040 and should be submitted on or before 
June 9, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
Florence E. Harmon,
Deputy Secretary.
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    \15\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E9-11618 Filed 5-18-09; 8:45 am]

BILLING CODE 8010-01-P
