Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Clarify Nasdaq's Definition of “Controlled Company”, 8831-8833 [E9-4062]
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Federal Register / Vol. 74, No. 37 / Thursday, February 26, 2009 / Notices
6(b) of the Act,7 in general, and furthers
the objectives of Section 6(b)(5) of the
Act,8 in particular, in that it is designed
to prevent fraudulent and manipulative
acts and practices, promote just and
equitable principles of trade, remove
impediments to and perfect the
mechanisms of a free and open market
and a national market system, and, in
general, protect investors and the public
interest. The proposed changes to the
rule should continue to contribute to the
Exchange’s ability to maintain a fair and
orderly market in a manner that will
limit unfair advantage and encourage
competition.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
CBOE does not believe that the
proposed rule change will impose any
burden on competition 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
No written comments were solicited
or received with respect to the proposed
rule change.
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 the self-regulatory
organization 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 is consistent with the Act.
Comments may be submitted by any of
the following methods:
Number SR–CBOE–2009–009 on the
subject line.
SECURITIES AND EXCHANGE
COMMISSION
Paper Comments
[Release No. 34–59424; File No. SR–
NASDAQ–2009–009]
• 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–CBOE–2009–009. 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, 100 F Street, NE., Washington,
DC 20549, on official business days
between the hours of 10 a.m. and 3 p.m.
Copies of such filing also will be
available for inspection and copying at
the principal office of the CBOE. 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–CBOE–2009–009 and
should be submitted on or before March
19, 2009.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.9
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9–4120 Filed 2–25–09; 8:45 am]
BILLING CODE 8011–01–P
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
7 15
8 15
U.S.C. 78f(b).
U.S.C. 78f(b)(5).
VerDate Nov<24>2008
16:56 Feb 25, 2009
Self-Regulatory Organizations; The
NASDAQ Stock Market LLC; Notice of
Filing and Immediate Effectiveness of
Proposed Rule Change To Clarify
Nasdaq’s Definition of ‘‘Controlled
Company’’
February 19, 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 February
10, 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 the Substance
of the Proposed Rule Change
Nasdaq proposes to clarify its
definition of a ‘‘controlled company.’’
Nasdaq will implement the proposed
rule upon approval [sic]. The text of the
proposed rule change is below.
Proposed new language is in italics.4
*
*
*
*
*
4350. Qualitative Listing
Requirements for Nasdaq Issuers Except
for Limited Partnerships.
(a)–(b) No change.
(c) Independent Directors
(1)–(4) No change.
(5) A Controlled Company is exempt
from the requirements of this Rule
4350(c), except for the requirements of
subsection (c)(2) which pertain to
executive sessions of independent
directors. A Controlled Company is a
company of which more than 50% of
the voting power for the election of
directors is held by an individual, a
group or another company. A Controlled
Company relying upon this exemption
must disclose in its annual meeting
proxy statement (or, if the issuer does
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 17 CFR 240.19b–4(f)(6).
4 Changes are marked to the rule text that appears
in the electronic manual of Nasdaq found at
https://nasdaqomx.cchwallstreet.com.
2 17
9 17
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Federal Register / Vol. 74, No. 37 / Thursday, February 26, 2009 / Notices
not file a proxy, in its Form 10–K or 20–
F) that it is a Controlled Company and
the basis for that determination.
(d)–(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
clarify the definition of a ‘‘controlled
company.’’ 5 Nasdaq currently allows a
‘‘controlled company’’ to exempt itself
from the requirements to have a
majority of independent directors on its
board and to have independent
compensation and nomination
committees.6 Under Nasdaq’s rules, a
‘‘controlled company’’ is a company of
which more than 50% of the voting
power is held by an individual, group,
or another company, and, in order for a
group to exist, the shareholders
comprising the group must have
publicly filed a notice that they are
acting as a group (e.g., a Schedule 13D).7
Under Nasdaq’s current practice, in
order for a company to be deemed a
controlled company, more than 50% of
the voting power for the election of
directors must be held by an individual,
group or another company. Nasdaq
proposes to amend its definition of
‘‘controlled company’’ to provide
transparency to this interpretation and
to provide clarity to companies and
investors about the availability of the
‘‘controlled company’’ exception. In
applying the rule in this manner,
Nasdaq intends to limit the controlled
company exception to companies with
shareholders who truly control that
company and its board composition. For
example, the controlled company
exception would not apply where a
5 Nasdaq previously proposed this change in SR–
NASDAQ–2008–005, which was withdrawn as of
the date of this current filing.
6 Nasdaq Rule 4350(c)(5).
7 Nasdaq Rule 4350(c)(5) and Nasdaq IM–4350–7.
VerDate Nov<24>2008
16:56 Feb 25, 2009
Jkt 217001
shareholder agreement exists relating
only to the disposition of assets.
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 Section 6(b)(5) of the
Act,9 in particular. Section 6(b)(5)
requires, among other things, that
Nasdaq’s rules be designed to prevent
fraudulent and manipulative acts and
practices, 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. The proposed change is
consistent with these requirements in
that it will prevent issuers from relying
on the exception when they are not
truly a ‘‘controlled company.’’ The
proposed rule change also will provide
a standard that is clear, straightforward
and uniform for issuers to understand
and apply.
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 foregoing rule does not:
(i) Significantly affect the protection of
investors or the public interest; (ii)
impose any significant burden on
competition; and (iii) become operative
for 30 days from the date on which it
was filed, or such shorter time as the
Commission may designate, if
consistent with the protection of
investors and the public interest, it has
become effective pursuant to Section
19(b)(3)(A) of the Act 10 and Rule 19b–
4(f)(6) thereunder.11
8 15
U.S.C. 78f.
U.S.C. 78f(b)(5).
10 15 U.S.C. 78s(b)(3)(A).
11 17 CFR 240.19b–4(f)(6). 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
Normally, a proposed rule change
filed under 19b–4(f)(6) may not become
operative prior to 30 days after the date
of filing. However, Rule 19b–
4(f)(6)(iii) 12 permits the Commission to
designate a shorter time if such action
is consistent with the protection of
investors and the public interest.
Nasdaq requests that the Commission
waive the 30-day waiting period.13
Nasdaq believes that the proposed
rule change does not significantly affect
the protection of investors or the public
interest because it provides
transparency to Nasdaq’s existing
interpretation of this Rule. Nasdaq
requests the waiver so that companies
that file their annual reports and proxy
statements with the Commission during
that period will have the benefit of this
clarification. In that regard, Nasdaq
notes that, depending on their filing
deadline under the Commission’s rules,
companies with fiscal year ends
between September 30, 2008 and
December 31, 2008, either just filed, or
are about to file, their annual reports
with the Commission and generally file
their proxy statements shortly
thereafter.
The Commission believes that waiver
of the operative date delay is
appropriate, particularly because
companies whose fiscal year recently
ended just filed, or are about to file,
their annual reports with the
Commission, and proxy statements
shortly thereafter, would have clarity
regarding the controlled company
provision. Therefore, 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.14
At any time within 60 days of the
filing of such proposed rule change, the
Commission may summarily abrogate
such rule change if it appears to the
Commission that such action is
necessary or appropriate in the public
interest, for the protection of investors,
or otherwise in furtherance of the
purposes of the Act.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
9 15
PO 00000
Frm 00060
Fmt 4703
Sfmt 4703
Commission. The Commission notes that Nasdaq
has satisfied the five-day pre-filing notice
requirement.
12 17 CFR 240.19b–4(f)(6)(iii).
13 17 CFR 240.19b–4(f)(6)(iii).
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).
E:\FR\FM\26FEN1.SGM
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Federal Register / Vol. 74, No. 37 / Thursday, February 26, 2009 / Notices
including whether the proposed rule
change, as amended, is consistent with
the Act. Comments may be submitted by
any of the following methods:
SMALL BUSINESS ADMINISTRATION
Electronic Comments
AGENCY: U.S. Small Business
Administration (SBA).
ACTION: Notice of open Federal Advisory
Committee meeting.
• 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–2009–009 on the
subject line.
National Small Business Development
Center Advisory Board
SUMMARY: The SBA is issuing this notice
to announce the location, date, time and
agenda for the next meeting of the
National Small Business Development
Center (SBDC) Advisory Board.
Paper Comments
DATES: The meeting will be held on
• Send paper comments in triplicate
Tuesday, March 17, 2009 at 1 p.m. EST.
to Elizabeth M. Murphy, Secretary,
ADDRESSES: This meeting will be held
Securities and Exchange Commission,
via conference call.
Station Place, 100 F Street, NE.,
SUPPLEMENTARY INFORMATION: Pursuant
Washington, DC 20549–1090.
to section 10(a) of the Federal Advisory
All submissions should refer to File
Committee Act (5 U.S.C. Appendix 2),
Number SR–NASDAQ–2009–009. This
SBA announces the meeting of the
file number should be included on the
National SBDC Advisory Board. This
subject line if e-mail is used. To help the Board provides advice and counsel to
Commission process and review your
the SBA Administrator and Associate
comments more efficiently, please use
Administrator for Small Business
only one method. The Commission will Development Centers.
post all comments on the Commission’s
The purpose of this meeting is to
Internet Web site (https://www.sec.gov/
discuss following issues pertaining to
rules/sro.shtml). Copies of the
the SBDC Advisory Board:
submission, all subsequent
—Board Wrap-Up of ASBDC Spring
amendments, all written statements
Meeting.
with respect to the proposed rule
—SBA Update.
change that are filed with the
—Member Roundtable.
Commission, and all written
FOR FURTHER INFORMATION CONTACT: The
communications relating to the
meeting is open to the public; however,
proposed rule change between the
advance notice of attendance is
Commission and any person, other than requested. Anyone wishing to be a
those that may be withheld from the
listening participant must contact
public in accordance with the
Alanna Falcone by Friday, March 13,
provisions of 5 U.S.C. 552, will be
2009, by fax or e-mail in order to be
available for inspection and copying in
placed on the agenda. Alanna Falcone,
the Commission’s Public Reference
Program Analyst, 409 Third Street, SW.,
Room on official business days between Washington, DC 20416, Phone, 202–
the hours of 10 a.m. and 3 p.m. Copies
619–1612, Fax 202–481–0134, e-mail,
of such filing also will be available for
alanna.falcone@sba.gov.
inspection and copying at the principal
Additionally, if you need
office of Nasdaq. All comments received accommodations because of a disability
will be posted without change; the
or require additional information, please
Commission does not edit personal
contact Alanna Falcone at the
identifying information from
information above.
submissions. You should submit only
Bridget E. Bean,
information that you wish to make
Acting Committee Management Officer.
available publicly.
[FR Doc. E9–4113 Filed 2–25–09; 8:45 am]
All submissions should refer to File
Number SR–NASDAQ–2009–009 and
BILLING CODE 8025–01–P
should be submitted on or before March
19, 2009.
SOCIAL SECURITY ADMINISTRATION
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.15
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9–4062 Filed 2–25–09; 8:45 am]
[Docket No. SSA–2009–0002]
BILLING CODE 8011–01–P
AGENCY:
15 17
ACTION:
CFR 200.30–3(a)(12).
VerDate Nov<24>2008
16:56 Feb 25, 2009
Agreement on Social Security Between
the United States and the Republic of
Poland; Entry Into Force
Jkt 217001
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Social Security Administration.
Notice.
Frm 00061
Fmt 4703
Sfmt 4703
8833
SUMMARY: We are giving notice that an
agreement coordinating the United
States (U.S.) and the Polish social
security programs will enter into force
on March 1, 2009. The agreement with
the Republic of Poland, which was
signed on April 2, 2008, is similar to
U.S. social security agreements already
in force with 23 other countries—
Australia, Austria, Belgium, Canada,
Chile, the Czech Republic, Denmark,
Finland, France, Germany, Greece,
Ireland, Italy, Japan, Korea (South),
Luxembourg, the Netherlands, Norway,
Portugal, Spain, Sweden, Switzerland
and the United Kingdom. Agreements of
this type are authorized by section 233
of the Social Security Act. 42 U.S.C.
433.
Like the other agreements, the U.S.Polish agreement eliminates dual social
security coverage. This situation exists
when a worker from one country works
in the other country and is covered
under the social security systems of
both countries for the same work. When
dual coverage occurs without such
agreements in force, the worker, the
worker’s employer, or both may be
required to pay social security
contributions to the two countries
simultaneously. Under the U.S.-Polish
agreement, a worker who is sent by an
employer in one country to work in the
other country for 5 or fewer years
remains covered only by the sending
country. The agreement includes
additional rules that eliminate dual U.S.
and Polish coverage in other work
situations.
The agreement also helps eliminate
situations where workers suffer a loss of
benefit rights because they have divided
their careers between the two countries.
Under the agreement, workers may
qualify for partial U.S. benefits or partial
Polish benefits based on combined
(totalized) work credits from both
countries.
Persons who would like a copy of the
agreement or want more information
about its provisions may write to the
Social Security Administration, Office
of International Programs, Post Office
Box 17741, Baltimore, MD 21235–7741
or visit the Social Security Web site at
https://www.socialsecurity.gov/
international.
Dated: February 20, 2009.
Michael J. Astrue,
Commissioner of Social Security.
[FR Doc. E9–4104 Filed 2–25–09; 8:45 am]
BILLING CODE 4191–02–P
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]]>Agencies
[Federal Register Volume 74, Number 37 (Thursday, February 26, 2009)]
[Notices]
[Pages 8831-8833]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-4062]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-59424; File No. SR-NASDAQ-2009-009]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Clarify Nasdaq's Definition of ``Controlled Company''
February 19, 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 February 10, 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 the
Substance of the Proposed Rule Change
Nasdaq proposes to clarify its definition of a ``controlled
company.'' Nasdaq will implement the proposed rule upon approval [sic].
The text of the proposed rule change is below. Proposed new language is
in italics.\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)-(b) No change.
(c) Independent Directors
(1)-(4) No change.
(5) A Controlled Company is exempt from the requirements of this
Rule 4350(c), except for the requirements of subsection (c)(2) which
pertain to executive sessions of independent directors. A Controlled
Company is a company of which more than 50% of the voting power for the
election of directors is held by an individual, a group or another
company. A Controlled Company relying upon this exemption must disclose
in its annual meeting proxy statement (or, if the issuer does
[[Page 8832]]
not file a proxy, in its Form 10-K or 20-F) that it is a Controlled
Company and the basis for that determination.
(d)-(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 clarify the definition of a
``controlled company.'' \5\ Nasdaq currently allows a ``controlled
company'' to exempt itself from the requirements to have a majority of
independent directors on its board and to have independent compensation
and nomination committees.\6\ Under Nasdaq's rules, a ``controlled
company'' is a company of which more than 50% of the voting power is
held by an individual, group, or another company, and, in order for a
group to exist, the shareholders comprising the group must have
publicly filed a notice that they are acting as a group (e.g., a
Schedule 13D).\7\
---------------------------------------------------------------------------
\5\ Nasdaq previously proposed this change in SR-NASDAQ-2008-
005, which was withdrawn as of the date of this current filing.
\6\ Nasdaq Rule 4350(c)(5).
\7\ Nasdaq Rule 4350(c)(5) and Nasdaq IM-4350-7.
---------------------------------------------------------------------------
Under Nasdaq's current practice, in order for a company to be
deemed a controlled company, more than 50% of the voting power for the
election of directors must be held by an individual, group or another
company. Nasdaq proposes to amend its definition of ``controlled
company'' to provide transparency to this interpretation and to provide
clarity to companies and investors about the availability of the
``controlled company'' exception. In applying the rule in this manner,
Nasdaq intends to limit the controlled company exception to companies
with shareholders who truly control that company and its board
composition. For example, the controlled company exception would not
apply where a shareholder agreement exists relating only to the
disposition of assets.
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 Section
6(b)(5) of the Act,\9\ in particular. Section 6(b)(5) requires, among
other things, that Nasdaq's rules be designed to prevent fraudulent and
manipulative acts and practices, 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. The proposed change is
consistent with these requirements in that it will prevent issuers from
relying on the exception when they are not truly a ``controlled
company.'' The proposed rule change also will provide a standard that
is clear, straightforward and uniform for issuers to understand and
apply.
---------------------------------------------------------------------------
\8\ 15 U.S.C. 78f.
\9\ 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, 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 foregoing rule does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative for 30
days from the date on which it was filed, or such shorter time as the
Commission may designate, if consistent with the protection of
investors and the public interest, it has become effective pursuant to
Section 19(b)(3)(A) of the Act \10\ and Rule 19b-4(f)(6)
thereunder.\11\
---------------------------------------------------------------------------
\10\ 15 U.S.C. 78s(b)(3)(A).
\11\ 17 CFR 240.19b-4(f)(6). 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. The Commission notes that Nasdaq has satisfied the five-
day pre-filing notice requirement.
---------------------------------------------------------------------------
Normally, a proposed rule change filed under 19b-4(f)(6) may not
become operative prior to 30 days after the date of filing. However,
Rule 19b-4(f)(6)(iii) \12\ permits the Commission to designate a
shorter time if such action is consistent with the protection of
investors and the public interest. Nasdaq requests that the Commission
waive the 30-day waiting period.\13\
---------------------------------------------------------------------------
\12\ 17 CFR 240.19b-4(f)(6)(iii).
\13\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------
Nasdaq believes that the proposed rule change does not
significantly affect the protection of investors or the public interest
because it provides transparency to Nasdaq's existing interpretation of
this Rule. Nasdaq requests the waiver so that companies that file their
annual reports and proxy statements with the Commission during that
period will have the benefit of this clarification. In that regard,
Nasdaq notes that, depending on their filing deadline under the
Commission's rules, companies with fiscal year ends between September
30, 2008 and December 31, 2008, either just filed, or are about to
file, their annual reports with the Commission and generally file their
proxy statements shortly thereafter.
The Commission believes that waiver of the operative date delay is
appropriate, particularly because companies whose fiscal year recently
ended just filed, or are about to file, their annual reports with the
Commission, and proxy statements shortly thereafter, would have clarity
regarding the controlled company provision. Therefore, 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.\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 such proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing,
[[Page 8833]]
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 (https://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NASDAQ-2009-009 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-2009-009. 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 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-2009-009 and
should be submitted on or before March 19, 2009.
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\15\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-4062 Filed 2-25-09; 8:45 am]
BILLING CODE 8011-01-P
