Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Modify Nasdaq's Listing Requirements Related to the Distribution of Annual Reports, 6186-6188 [E9-2427]
Download as PDF
<![CDATA[
6186
Federal Register / Vol. 74, No. 23 / Thursday, February 5, 2009 / Notices
All submissions should refer to File
Number SR–BX–2009–002. 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 (https://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 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–BX–
2009–002 and should be submitted on
or before February 26, 2009.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.13
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9–2428 Filed 2–4–09; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–59318; File No. SR–
NASDAQ–2009–003]
Self-Regulatory Organizations; The
NASDAQ Stock Market LLC; Notice of
Filing and Immediate Effectiveness of
a Proposed Rule Change To Modify
Nasdaq’s Listing Requirements
Related to the Distribution of Annual
Reports
rwilkins on PROD1PC63 with NOTICES
January 29, 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 January
15, 2009, The NASDAQ Stock Market
LLC (‘‘Nasdaq’’) filed with the Securities
and Exchange Commission
(‘‘Commission’’) 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.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
Nasdaq proposes to modify Rules
4350(b)(1)(A) and 4360(b)(1), which
relate to the distribution of a listed
issuer’s annual report.
The text of the proposed rule change
is below. Proposed new language is
italicized; proposed deletions are in
brackets.4
4350. Qualitative Listing Requirements
for Nasdaq Issuers Except for Limited
Partnerships
(a) No change.
(b) Distribution of Annual and Interim
Reports
(1)(A) Each issuer shall make
available to shareholders of such
securities an annual report containing
audited financial statements of the
company and its subsidiaries, which, for
example, may be on Form 10–K, 20–F,
40–F or N–CSR. An issuer may comply
with this requirement either:
(i) By mailing the report to
shareholders[,]; or
(ii) By satisfying the requirements for
furnishing an annual report contained
in Exchange Act Rule 14a–16; or
(iii) by posting the annual report to
shareholders on or through the
company’s Web site (or, in the case of
an issuer that is an investment company
that does not maintain its own Web site,
on a website that the issuer is allowed
to use to satisfy the Web site posting
requirement in Exchange Act Rule 16a–
3(k)), along with a prominent
undertaking in the English language to
provide shareholders, upon request, a
hard copy of the company’s annual
report free of charge. An issuer that
chooses to satisfy this requirement [via
a Web site posting] pursuant to this
paragraph (iii) must, simultaneous with
this posting, issue a press release stating
that its annual report has been filed
3 17
CFR 240.19b–4(f)(6).
are marked to the rule text that appears
in the electronic manual of Nasdaq found at
https://nasdaqomx.cchwallstreet.com.
13 17
CFR 200.30–3(a)(12).
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
VerDate Nov<24>2008
16:34 Feb 04, 2009
4 Changes
Jkt 217001
PO 00000
Frm 00054
Fmt 4703
Sfmt 4703
with the Commission (or other
appropriate regulatory authority). This
press release must also state that the
annual report is available on the
company’s Web site and include the
Web site address and that shareholders
may receive a hard copy free of charge
upon request. An issuer must provide
such hard copies within a reasonable
period of time following the request.
(B) No change.
(2)–(4) No change.
(c)–(n) No change.
*
*
*
*
*
4360. Qualitative Listing Requirements
for Nasdaq Issuers That Are Limited
Partnerships
(a) No change.
(b) Distribution of Annual and Interim
Reports
(1) Each issuer that is a limited
partnership shall distribute to limited
partners copies of an annual report
containing audited financial statements
of the limited partnership. The report
shall be distributed to limited partners
within a reasonable period of time after
the end of the limited partnership’s
fiscal year end and shall be filed with
Nasdaq at the time it is distributed to
limited partners. A limited partnership
may comply with this requirement
either:
(A) By mailing the report to the
limited partners; or
(B) By satisfying the requirements for
furnishing an annual report contained
in Exchange Act Rule 14a–16; or
(C) By posting the annual report on or
through the limited partnership’s Web
site, along with a prominent
undertaking in the English language to
provide limited partners, upon request,
a hard copy of the partnership’s annual
report free of charge. A limited
partnership that chooses to satisfy this
requirement pursuant to this paragraph
(C) must, simultaneous with this
posting, issue a press release stating that
its annual report has been filed with the
Commission (or other appropriate
regulatory authority). This press release
must also state that the annual report is
available on the limited partnership’s
Web site and include the Web site
address and that limited partners may
receive a hard copy free of charge upon
request. A limited partnership must
provide such hard copies within a
reasonable period of time following the
request.
(2) No change.
(c)–(m) No change.
*
*
*
*
*
E:\FR\FM\05FEN1.SGM
05FEN1
Federal Register / Vol. 74, No. 23 / Thursday, February 5, 2009 / Notices
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.
rwilkins on PROD1PC63 with NOTICES
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
Nasdaq is proposing to modify Rule
4350(b)(1)(A), which relates to the
distribution of a company’s annual
report. At present, the Rule requires that
a company either: (i) Distribute a
physical copy of its annual report to
shareholders, or (ii) issue a press release
announcing the filing of its annual
report and the availability of that report
on the company’s Web site or upon
request. Nasdaq proposes to maintain
these two alternatives, but proposes to
also allow a company to satisfy this
requirement by following the
requirements related to ‘‘Internet
Availability of Proxy Materials’’
contained in the Commission’s Rule
14a–16.5 Nasdaq believes that accepting
compliance with the comparable
Commission requirement to furnish an
annual report will ease the compliance
burden on companies while continuing
to assure that this information is
available to shareholders. In addition,
Nasdaq believes that maintaining the
requirement to issue a press release
when relying on the existing alternative
will allow companies that are not
subject to the Commission’s proxy rules
to continue to take advantage of
technology to satisfy the requirement to
distribute their annual report.
Nasdaq is also proposing to modify
Rule 4360(b)(1) to add the manner in
which a limited partnership may satisfy
the requirement to deliver an annual
report. Presently, this rule is silent as to
how the requirement can be satisfied,
but Nasdaq believes that limited
partnerships can comply in the same
manner as described in Rule
4350(b)(1)(A). As such, the addition
would clarify that a limited partnerships
[sic] must satisfy the requirement in the
same way as other listed issuers,
although Rule 4360(b)(1) would have
non-substantive differences from Rule
4350(b)(1) to reflect its applicability to
partnerships (instead of corporations),
which are held by limited partners
(instead of shareholders). Nasdaq notes
that pursuant to Rule 4360(e), a limited
partnership is only required to hold
annual meetings if required by statute or
regulation in the state in which the
limited partnership is formed or doing
business or by the terms of the
partnership’s limited partnership
agreement. As such, limited
partnerships frequently will not hold
meetings or solicit proxies, and
therefore would not be subject to the
Commission’s proxy rules, but could
still satisfy the requirement to deliver
the annual report through the
alternatives described in the proposed
rule.
2. Statutory Basis
Nasdaq believes that the proposed
rule change is consistent with the
provisions of Section 6 of the Act,6 in
general and with Sections 6(b)(5) of the
Act,7 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
facilitate compliance with Nasdaq rules
by aligning Nasdaq’s disclosure
requirements with those of the
Commission.
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.
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.
6 15
5 17
CFR 240.14a–16.
VerDate Nov<24>2008
16:34 Feb 04, 2009
7 15
Jkt 217001
PO 00000
U.S.C. 78f.
U.S.C. 78f(b)(5).
Frm 00055
Fmt 4703
Sfmt 4703
6187
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
19(b)(3)(A) of the Act 8 and Rule 19b–
4(f)(6) thereunder.9
A proposed rule change filed
pursuant to Rule 19b–4(f)(6) under the
Act 10 normally does not become
operative for 30 days after the date of its
filing. However, Rule 19b–4(f)(6)(iii) 11
permits the Commission to designate a
shorter time if such action is consistent
with the protection of investors and the
public interest. The Exchange has
requested that the Commission waive
the 30-day operative delay.
The Commission believes that
waiving the 30-day operative delay is
consistent with the protection of
investors and the public interest. In
making this determination, the
Commission notes that the NYSE
recently adopted a substantially similar
listing requirement governing the
distribution of annual reports,12 and the
Commission believes that the Nasdaq’s
proposed rule change raises no new
regulatory issues. The Commission also
notes that the NYSE’s proposal was
subject to full notice and comment, and
the Commission received no comments
on the NYSE’s rule proposal. In
addition, the Commission believes that
waiving the 30-day operative delay will
immediately give issuers that have just
filed, or are about to file, their annual
reports with the Commission the option
to comply with Nasdaq’s distribution of
annual reports requirement by satisfying
the requirements for furnishing an
annual report contained in Rule 14a–16
under the Act. The Commission also
believes that it is consistent with the
8 15
U.S.C. 78s(b)(3)(A).
CFR 240.19b–4(f)(6). Pursuant to Rule 19b–
4(f)(6)(iii) under the Act, the Exchange is required
to give 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. The Exchange
has satisfied this requirement.
10 17 CFR 240.19b–4(f)(6).
11 17 CFR 240.19b–4(f)(6)(iii).
12 See Securities Exchange Act Release No. 59123
(December 19, 2008), 73 FR 7991 (December 30,
2008) (SR–NYSE–2008–128).
9 17
E:\FR\FM\05FEN1.SGM
05FEN1
6188
Federal Register / Vol. 74, No. 23 / Thursday, February 5, 2009 / Notices
protection of investors and the public
interest to allow limited partnerships to
distribute annual reports to their limited
partners under the same terms and
conditions as Nasdaq’s other listed
operating companies. The Commission
believes that waiving the 30-day
operative delay for limited partnerships
will also allow these partnerships who
have just filed, or are about to file, their
annual reports with the Commission, to
immediately take advantage of the same
means of distribution under Nasdaq
rules that are available for any other
operating company. For these reasons,
the Commission designates that the
proposed rule change become operative
immediately upon filing.13
At any time within 60 days of the
filing of the proposed rule change, the
Commission may summarily abrogate
the 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 (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number SR–NASDAQ–2009–003 on the
subject line.
rwilkins on PROD1PC63 with NOTICES
Paper Comments
• Send paper comments in triplicate
to Elizabeth M. Murphy, Secretary,
Securities and Exchange Commission,
100 F Street, NE., Washington, DC
20549–1090.
All submissions should refer to File
Number SR–NASDAQ–2009–003. 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 (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
13 For
purposes only of waiving the 30-day
operative delay, the Commission has considered the
proposed rule’s impact on efficiency, competition,
and capital formation. 15 U.S.C. 78c(f).
VerDate Nov<24>2008
16:34 Feb 04, 2009
Jkt 217001
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 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–
NASDAQ–2009–003 and should be
submitted on or before February 26,
2009.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.14
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9–2427 Filed 2–4–09; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–59327; File No. SR–NYSE–
2009–09]
Self-Regulatory Organizations; New
York Stock Exchange LLC; Notice of
Filing and Immediate Effectiveness of
Proposed Rule Change Implementing
an Equity Transaction Fee for Shares
Executed on or Through the New York
Block Exchange Effective Upon Filing
With the Commission
January 30, 2009.
Pursuant to Section 19(b)(1) 1 of the
Securities Exchange Act of 1934 (the
‘‘Act’’) 2 and Rule 19b–4 thereunder,3
notice is hereby given that, on January
28, 2009, New York Stock Exchange
LLC (‘‘NYSE’’ 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 prepared by the selfregulatory organization. The
Commission is publishing this notice to
14 17
CFR 200.30–3(a)(12).
U.S.C.78s(b)(1).
2 15 U.S.C. 78a.
3 17 CFR 240.19b–4.
1 15
PO 00000
Frm 00056
Fmt 4703
Sfmt 4703
solicit comments on the proposed rule
change from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to implement
an equity transaction fee effective
January 29, 2009, for shares executed on
the New York Block Exchange SM
(‘‘NYBX’’ or the ‘‘Facility’’).4 The
Exchange will charge each Member
Organization $.0025 per share executed
on the NYBX.
The text of the proposed rule change
is available at https://www.nyse.com, the
Exchange, and 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
self-regulatory organization 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 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 the
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange proposes to implement
an equity transaction fee for executions
on or through the New York Block
Exchange system with effect from the
scheduled launch date of January 29,
2009. The NYBX will be an electronic
facility of the Exchange to provide for
the continuous matching and execution
of securities listed on the NYSE of all
non-displayed orders with the aggregate
of all displayed and non-displayed
orders of the NYSE Display Book®
(‘‘Display Book’’ or ‘‘DBK’’) while also
considering protected quotations of all
automated trading centers (‘‘away
markets’’). The proposed transactional
fee of $.0025 per executed share will be
charged to both the buyer(s) and
seller(s) of the executed shares. The fee
will be charged for all executions of
NYBX orders, including those NYBX
executions that take place in the DBK or
4 See Securities Exchange Act Release No. 59281
(January 22, 2008) 74 FR 5014 (January 28, 2009)
(SR–NYSE–2008–120) and Securities Exchange Act
Release No. 59282 (January 22, 2009), 74 FR 5009
(January 28, 2009) (SR–NYSE–2008–119).
E:\FR\FM\05FEN1.SGM
05FEN1
]]>Agencies
[Federal Register Volume 74, Number 23 (Thursday, February 5, 2009)]
[Notices]
[Pages 6186-6188]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-2427]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-59318; File No. SR-NASDAQ-2009-003]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of a Proposed Rule Change
To Modify Nasdaq's Listing Requirements Related to the Distribution of
Annual Reports
January 29, 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 January 15, 2009, The NASDAQ Stock Market LLC (``Nasdaq'') filed
with the Securities and Exchange Commission (``Commission'') 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.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
Nasdaq proposes to modify Rules 4350(b)(1)(A) and 4360(b)(1), which
relate to the distribution of a listed issuer's annual report.
The text of the proposed rule change is below. Proposed new
language is italicized; proposed deletions are in brackets.\4\
---------------------------------------------------------------------------
\4\ Changes are marked to the rule text that appears in the
electronic manual of Nasdaq found at https://
nasdaqomx.cchwallstreet.com.
---------------------------------------------------------------------------
4350. Qualitative Listing Requirements for Nasdaq Issuers Except for
Limited Partnerships
(a) No change.
(b) Distribution of Annual and Interim Reports
(1)(A) Each issuer shall make available to shareholders of such
securities an annual report containing audited financial statements of
the company and its subsidiaries, which, for example, may be on Form
10-K, 20-F, 40-F or N-CSR. An issuer may comply with this requirement
either:
(i) By mailing the report to shareholders[,]; or
(ii) By satisfying the requirements for furnishing an annual report
contained in Exchange Act Rule 14a-16; or
(iii) by posting the annual report to shareholders on or through
the company's Web site (or, in the case of an issuer that is an
investment company that does not maintain its own Web site, on a
website that the issuer is allowed to use to satisfy the Web site
posting requirement in Exchange Act Rule 16a-3(k)), along with a
prominent undertaking in the English language to provide shareholders,
upon request, a hard copy of the company's annual report free of
charge. An issuer that chooses to satisfy this requirement [via a Web
site posting] pursuant to this paragraph (iii) must, simultaneous with
this posting, issue a press release stating that its annual report has
been filed with the Commission (or other appropriate regulatory
authority). This press release must also state that the annual report
is available on the company's Web site and include the Web site address
and that shareholders may receive a hard copy free of charge upon
request. An issuer must provide such hard copies within a reasonable
period of time following the request.
(B) No change.
(2)-(4) No change.
(c)-(n) No change.
* * * * *
4360. Qualitative Listing Requirements for Nasdaq Issuers That Are
Limited Partnerships
(a) No change.
(b) Distribution of Annual and Interim Reports
(1) Each issuer that is a limited partnership shall distribute to
limited partners copies of an annual report containing audited
financial statements of the limited partnership. The report shall be
distributed to limited partners within a reasonable period of time
after the end of the limited partnership's fiscal year end and shall be
filed with Nasdaq at the time it is distributed to limited partners. A
limited partnership may comply with this requirement either:
(A) By mailing the report to the limited partners; or
(B) By satisfying the requirements for furnishing an annual report
contained in Exchange Act Rule 14a-16; or
(C) By posting the annual report on or through the limited
partnership's Web site, along with a prominent undertaking in the
English language to provide limited partners, upon request, a hard copy
of the partnership's annual report free of charge. A limited
partnership that chooses to satisfy this requirement pursuant to this
paragraph (C) must, simultaneous with this posting, issue a press
release stating that its annual report has been filed with the
Commission (or other appropriate regulatory authority). This press
release must also state that the annual report is available on the
limited partnership's Web site and include the Web site address and
that limited partners may receive a hard copy free of charge upon
request. A limited partnership must provide such hard copies within a
reasonable period of time following the request.
(2) No change.
(c)-(m) No change.
* * * * *
[[Page 6187]]
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
Nasdaq is proposing to modify Rule 4350(b)(1)(A), which relates to
the distribution of a company's annual report. At present, the Rule
requires that a company either: (i) Distribute a physical copy of its
annual report to shareholders, or (ii) issue a press release announcing
the filing of its annual report and the availability of that report on
the company's Web site or upon request. Nasdaq proposes to maintain
these two alternatives, but proposes to also allow a company to satisfy
this requirement by following the requirements related to ``Internet
Availability of Proxy Materials'' contained in the Commission's Rule
14a-16.\5\ Nasdaq believes that accepting compliance with the
comparable Commission requirement to furnish an annual report will ease
the compliance burden on companies while continuing to assure that this
information is available to shareholders. In addition, Nasdaq believes
that maintaining the requirement to issue a press release when relying
on the existing alternative will allow companies that are not subject
to the Commission's proxy rules to continue to take advantage of
technology to satisfy the requirement to distribute their annual
report.
---------------------------------------------------------------------------
\5\ 17 CFR 240.14a-16.
---------------------------------------------------------------------------
Nasdaq is also proposing to modify Rule 4360(b)(1) to add the
manner in which a limited partnership may satisfy the requirement to
deliver an annual report. Presently, this rule is silent as to how the
requirement can be satisfied, but Nasdaq believes that limited
partnerships can comply in the same manner as described in Rule
4350(b)(1)(A). As such, the addition would clarify that a limited
partnerships [sic] must satisfy the requirement in the same way as
other listed issuers, although Rule 4360(b)(1) would have non-
substantive differences from Rule 4350(b)(1) to reflect its
applicability to partnerships (instead of corporations), which are held
by limited partners (instead of shareholders). Nasdaq notes that
pursuant to Rule 4360(e), a limited partnership is only required to
hold annual meetings if required by statute or regulation in the state
in which the limited partnership is formed or doing business or by the
terms of the partnership's limited partnership agreement. As such,
limited partnerships frequently will not hold meetings or solicit
proxies, and therefore would not be subject to the Commission's proxy
rules, but could still satisfy the requirement to deliver the annual
report through the alternatives described in the proposed rule.
2. Statutory Basis
Nasdaq believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\6\ in general and with Sections
6(b)(5) of the Act,\7\ 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 facilitate compliance with Nasdaq rules by aligning
Nasdaq's disclosure requirements with those of the Commission.
---------------------------------------------------------------------------
\6\ 15 U.S.C. 78f.
\7\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
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.
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 19(b)(3)(A) of the Act \8\ and
Rule 19b-4(f)(6) thereunder.\9\
---------------------------------------------------------------------------
\8\ 15 U.S.C. 78s(b)(3)(A).
\9\ 17 CFR 240.19b-4(f)(6). Pursuant to Rule 19b-4(f)(6)(iii)
under the Act, the Exchange is required to give 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.
The Exchange has satisfied this requirement.
---------------------------------------------------------------------------
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \10\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \11\ permits the
Commission to designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has requested that the Commission waive the 30-day operative delay.
---------------------------------------------------------------------------
\10\ 17 CFR 240.19b-4(f)(6).
\11\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------
The Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest. In
making this determination, the Commission notes that the NYSE recently
adopted a substantially similar listing requirement governing the
distribution of annual reports,\12\ and the Commission believes that
the Nasdaq's proposed rule change raises no new regulatory issues. The
Commission also notes that the NYSE's proposal was subject to full
notice and comment, and the Commission received no comments on the
NYSE's rule proposal. In addition, the Commission believes that waiving
the 30-day operative delay will immediately give issuers that have just
filed, or are about to file, their annual reports with the Commission
the option to comply with Nasdaq's distribution of annual reports
requirement by satisfying the requirements for furnishing an annual
report contained in Rule 14a-16 under the Act. The Commission also
believes that it is consistent with the
[[Page 6188]]
protection of investors and the public interest to allow limited
partnerships to distribute annual reports to their limited partners
under the same terms and conditions as Nasdaq's other listed operating
companies. The Commission believes that waiving the 30-day operative
delay for limited partnerships will also allow these partnerships who
have just filed, or are about to file, their annual reports with the
Commission, to immediately take advantage of the same means of
distribution under Nasdaq rules that are available for any other
operating company. For these reasons, the Commission designates that
the proposed rule change become operative immediately upon filing.\13\
---------------------------------------------------------------------------
\12\ See Securities Exchange Act Release No. 59123 (December 19,
2008), 73 FR 7991 (December 30, 2008) (SR-NYSE-2008-128).
\13\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
---------------------------------------------------------------------------
At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate the 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 (https://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NASDAQ-2009-003 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2009-003. 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 (https://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 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-NASDAQ-2009-003 and should be submitted on or before
February 26, 2009.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\14\
---------------------------------------------------------------------------
\14\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-2427 Filed 2-4-09; 8:45 am]
BILLING CODE 8011-01-P
