Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Make Conforming Changes to Certain Notification Requirements, 20415-20417 [2010-8947]
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Federal Register / Vol. 75, No. 74 / Monday, April 19, 2010 / Notices
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.11
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010–8948 Filed 4–16–10; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–61887; File No. SR–
NASDAQ–2010–041]
Self-Regulatory Organizations; The
NASDAQ Stock Market LLC; Notice of
Filing and Immediate Effectiveness of
Proposed Rule Change To Make
Conforming Changes to Certain
Notification Requirements
April 12, 2010.
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 March 26,
2010, 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.
wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1
I. Self-Regulatory Organization’s
Statement of the Terms of the Substance
of the Proposed Rule Change
Nasdaq proposes to modify the Listing
Rules to make conforming changes to
certain notification requirements.
The text of the proposed rule change
is below. Proposed new language is in
italic; proposed deletions are in
[brackets].4
5250. Obligations for Companies Listed
on The Nasdaq Stock Market
(a) No change.
(b) Obligation to Make Public
Disclosure
(1) No change.
(2) As set forth in Rule 5810(b), a
Company that receives a notification of
deficiency from Nasdaq is required to
make a public announcement by filing
a Form 8–K, where required by SEC
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://nasdaq.cchwallstreet.com.
2 17
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rules, or by issuing a press release
disclosing receipt of the notification and
the Rule(s) upon which the deficiency is
based. However, note that in the case of
a deficiency related to the requirement
to file a periodic report contained in
Rule 5250(c)(1) or (2), the Company is
required to make the public
announcement by issuing a press
release. As described in Rule 5250(b)(1)
and IM–5250–1, [notice to the] the
Company must notify Nasdaq’s
MarketWatch Department [must be
made] about the announcement through
the electronic disclosure submission
system available at www.nasdaq.net,
except in emergency situations when
notification may instead be provided by
telephone or facsimile. If the public
announcement is made during Nasdaq
market hours, the Company must notify
MarketWatch at least ten minutes prior
to the [public] announcement. If the
public announcement is made outside
of Nasdaq market hours, the Company
must notify MarketWatch of the
announcement prior to 6:50 a.m. ET.
(c)–(f) No change.
*
*
*
*
*
5810. Notification of Deficiency by the
Listing Qualifications Department
When the Listing Qualifications
Department determines that a Company
does not meet a listing standard set forth
in the Rule 5000 Series, it will
immediately notify the Company of the
deficiency. As explained in more detail
below, deficiency notifications are of
four types:
(1)–(4) No change.
Notifications of deficiencies that
allow for submission of a compliance
plan or an automatic cure or compliance
period may result, after review of the
compliance plan or expiration of the
cure or compliance period, in issuance
of a Staff Delisting Determination or a
Public Reprimand Letter.
(a) No change.
(b) Company Disclosure Obligations
A Company that receives a
notification of deficiency, Staff Delisting
Determination, or Public Reprimand
Letter is required to make a public
announcement disclosing receipt of the
notification and the Rule(s) upon which
the deficiency is based. A Company that
receives a notification of deficiency or
Staff Delisting Determination related to
the requirement to file a periodic report
contained in Rule 5250(c)(1) or (2) is
required to make the public
announcement by issuing a press release
disclosing receipt of the notification and
the Rule(s) upon which the deficiency is
based, in addition to filing any Form 8–
K required by SEC rules. In all other
cases, the Company may make the
PO 00000
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20415
public announcement either by filing a
Form 8–K, where required by SEC rules,
or by issuing a press release. [Before
release of the public announcement,
Companies must provide a copy of the
announcement to Nasdaq’s
MarketWatch Department.] As described
in Rule 5250(b)(1) and IM–5250–1,
[notice to the] the Company must notify
Nasdaq’s MarketWatch Department
[must be made] about the
announcement through the electronic
disclosure submission system available
at www.nasdaq.net, except in
emergency situations when notification
may instead be provided by telephone
or facsimile. If the public announcement
is made during Nasdaq market hours,
the Company must notify MarketWatch
at least ten minutes prior to the [public]
announcement. If the public
announcement is made outside of
Nasdaq market hours, the Company
must notify MarketWatch of the
announcement prior to 6:50 a.m. ET.
The Company should make the public
announcement as promptly as possible
but not more than four business days
following receipt of the notification.
(c)–(d) No change.
*
*
*
*
*
5840. Adjudicatory Process: General
Information
(a)–(j) No change.
(k) Disclosure of Public Reprimand
Letter
A Company that receives an
Adjudicatory Body Decision that serves
as a Public Reprimand Letter must make
a public announcement by filing a Form
8–K, where required by SEC rules, or by
issuing a press release disclosing the
receipt of the Decision, including the
Rule(s) upon which the Decision was
based. [Prior to the release of the public
announcement, the Company must
provide such disclosure to Nasdaq’s
MarketWatch Department.] As described
in Rule 5250(b)(1) and IM–5250–1,
[notice to the] the Company must notify
Nasdaq’s MarketWatch Department
[must be made] about the
announcement through the electronic
disclosure submission system available
at www.nasdaq.net, except in
emergency situations when notification
may instead be provided by telephone
or facsimile. If the public announcement
is made during Nasdaq market hours,
the Company must notify MarketWatch
at least ten minutes prior to the [public]
announcement. If the public
announcement is made outside of
Nasdaq market hours, the Company
must notify MarketWatch of the
announcement prior to 6:50 a.m. ET.
The Company should make the public
announcement [should be made] as
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20416
Federal Register / Vol. 75, No. 74 / Monday, April 19, 2010 / Notices
promptly as possible[,] but not more
than four business days following
receipt of the Decision.
*
*
*
*
*
or facsimile.8 Finally, Nasdaq proposes
to make other non-substantive changes
to these rules so that they each use
consistent language.
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.
2. Statutory Basis
Nasdaq believes that the proposed
rule change is consistent with the
provisions of Section 6 of the Act,9 in
general and with Sections 6(b)(5) of the
Act,10 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 change will conform Nasdaq’s
notification requirements in the rules
amended in the Press Release Filing
with Nasdaq’s notification requirements
for the disclosure of material
information, thereby reducing confusion
among listed companies and investors.
wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
Nasdaq recently adopted changes to
certain of its press release requirements
for Nasdaq-listed companies (the ‘‘Press
Release Filing’’).5 Subsequent to
Nasdaq’s filing and the Commission’s
publication of this proposal,6 Nasdaq
made an immediately effective change
to its rules to clarify when listed
companies must provide notification to
Nasdaq of material information
disclosed outside of market hours.7 As
revised, when the material information
is made public outside of Nasdaq
market hours, Nasdaq companies must
provide notification of the information
to MarketWatch by 6:50 a.m. ET. Nasdaq
proposes to make conforming changes to
the rules modified in the Press Release
Filing, such that Rules 5250(b)(2),
5810(b) and 5840(k) would each specify
that if a required public announcement
is made during market hours, the
company must notify Nasdaq’s
MarketWatch Department at least ten
minutes prior to making the
announcement to the public; otherwise
the company must notify the
MarketWatch Department prior to 6:50
am ET. Nasdaq also proposes to clarify
that companies are not required to use
the electronic disclosure submission
system to notify MarketWatch in
emergency situations, when notification
may instead be provided by telephone
5 Securities Exchange Act Release No. 61713
(March 15, 2010), 75 FR 13629 (March 22, 2010)
(SR–NASDAQ–2010–006).
6 Securities Exchange Act Release No. 61461
(February 1, 2010), 75 FR 6241 (February 8, 2010)
(SR–NASDAQ–2010–006).
7 Securities Exchange Act Release No. 61521
(February 16, 2010), 75 FR 8156 (February 23, 2010)
(SR–NASDAQ–2010–008).
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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
8 IM–5250–1 already provides that companies do
not have to use the electronic disclosure submission
system in an emergency situation and provides
examples of emergency situations, such as the lack
of computer or internet access, technical problems,
and cases where no draft disclosure document is
available.
9 15 U.S.C. 78f.
10 15 U.S.C. 78f(b)(5).
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19(b)(3)(A) of the Act 11 and Rule 19b–
4(f)(6) thereunder.12
A proposed rule change filed
pursuant to Rule 19b–4(f)(6) under the
Act 13 normally does not become
operative for 30 days after the date of its
filing. However, Rule 19b–4(f)(6)(iii) 14
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 waiver
of the operative delay is consistent with
the protection of investors and the
public interest because the proposed
rule change would merely conform
Rules 5250(b)(2), 5810(b) and 5840(k) to
the notification requirements when
companies release material information
outside of market hours in Nasdaq’s
other rules,15 thereby reducing company
and investor confusion. As such, the
Commission believes that the proposed
rule change raises no new regulatory
issues. Additionally, Nasdaq’s
clarification that in emergencies,
companies are not required to notify
MarketWatch through the electronic
disclosure system but may do so via
telephone or facsimile aligns the rules to
the existing requirements of Nasdaq
Rule 5250(b)(1) and IM–5250–1, further
reducing confusion for companies.16 For
these reasons, the Commission
designates that the proposed rule
change become operative immediately
upon filing.17
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,
11 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.
13 17 CFR 240.19b–4(f)(6).
14 17 CFR 240.19b–4(f)(6)(iii).
15 See Nasdaq Rule 5250(b)(1) and IM–5250–1.
16 See supra note 8.
17 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).
12 17
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Federal Register / Vol. 75, No. 74 / Monday, April 19, 2010 / Notices
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1
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
No. SR–NASDAQ–2010–041 on the
subject line.
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–61895; File No. SR–
NYSEArca–2010–28]
Self-Regulatory Organizations; NYSE
Arca, Inc.; Notice of Filing of a
Proposed Rule Change Amending Its
Schedule of Fees
April 13, 2010.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’) 1 and Rule 19b–4 thereunder,2
Paper Comments
notice is hereby given that on April 12,
• Send paper comments in triplicate
2010, NYSE Arca, Inc. (‘‘NYSE Arca’’ or
to Elizabeth M. Murphy, Secretary,
the ‘‘Exchange’’) filed with the Securities
Securities and Exchange Commission,
and Exchange Commission
100 F Street, NE., Washington, DC
(‘‘Commission’’) the proposed rule
20549–1090.
change as described in Items I, II, and
All submissions should refer to File No. III below, which Items have been
prepared by NYSE Arca. The
SR–NASDAQ–2010–041. This file
Commission is publishing this notice to
number should be included on the
subject line if e-mail is used. To help the solicit comments on the proposed rule
change from interested persons.
Commission process and review your
comments more efficiently, please use
I. Self-Regulatory Organization’s
only one method. The Commission will Statement of the Terms of Substance of
post all comments on the Commission’s the Proposed Rule Change
Internet Web site (https://www.sec.gov/
The Exchange proposes to extend the
rules/sro.shtml). Copies of the
pilot program regarding a cap on
submission, all subsequent
transaction fees for strategy executions.
amendments, all written statements
A copy of this filing is available on the
with respect to the proposed rule
Exchange’s Web site at https://
change that are filed with the
www.nyse.com, at the Exchange’s
Commission, and all written
principal office, at the Commission’s
communications relating to the
Public Reference Room, and on the
proposed rule change between the
Commission and any person, other than Commission’s Web site at https://
www.sec.gov.
those that may be withheld from the
public in accordance with the
II. Self-Regulatory Organization’s
provisions of 5 U.S.C. 552, will be
Statement of the Purpose of, and
available for Web site viewing and
Statutory Basis for, the Proposed Rule
printing in the Commission’s Public
Change
Reference Room, 100 F Street, NE.,
In its filing with the Commission, the
Washington, DC 20549, on official
self-regulatory organization included
business days between the hours of 10
statements concerning the purpose of,
a.m. and 3 p.m. Copies of such filing
and basis for, the proposed rule change
also will be available for inspection and and discussed any comments it received
copying at the principal office of
on the proposed rule change. The text
NASDAQ. All comments received will
of those statements may be examined at
be posted without change; the
the places specified in Item IV below.
Commission does not edit personal
The Exchange has prepared summaries,
identifying information from
set forth in sections A, B, and C below,
submissions. You should submit only
of the most significant parts of such
information that you wish to make
statements.
available publicly. All submissions
A. Self-Regulatory Organization’s
should refer to File No. SR–NASDAQ–
Statement of the Purpose of, and
2010–041 and should be submitted on
Statutory Basis for, the Proposed Rule
or before May 10, 2010.
Change
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.18
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010–8947 Filed 4–16–10; 8:45 am]
1. Purpose
NYSE Arca proposes to extend the
pilot program regarding a cap on
transaction fees for strategy executions
(‘‘Program’’). Under this Program,
strategy executions are capped at $750
per transaction, and, in addition,
transaction fees for these strategies are
further capped at $25,000 per month per
initiating firm. This Program previously
expired on March 1, 2010. Extending
this Program retroactively from March 1,
2010 through April 1, 2010 facilitates
consistent treatment with respect to fees
for strategy executions.
2. Statutory Basis
The proposed rule change is
consistent with Section 6(b) 3 of the
Securities Exchange Act of 1934 (the
‘‘Act’’), in general, and furthers the
objectives of Section 6(b)(5) 4 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 facilitating
transactions in securities, and to remove
impediments to and perfect the
mechanisms of a free and open market
and a national market system. In
addition, the proposed extension of the
Program is reasonable in that the fees
are equitable as they apply uniformly to
all similarly situated OTP Holders.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
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
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 the proposed
rule change, or
(B) institute proceedings to determine
whether the proposed rule change
should be disapproved.
BILLING CODE 8011–01–P
1 15
18 17
CFR 200.30–3(a)(12).
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15:04 Apr 16, 2010
2 17
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PO 00000
U.S.C. 78s(b)(1).
CFR 240.19b–4.
Frm 00093
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3 15
4 15
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U.S.C. 78f(b).
U.S.C. 78f(b)(5).
19APN1
]]>Agencies
[Federal Register Volume 75, Number 74 (Monday, April 19, 2010)]
[Notices]
[Pages 20415-20417]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-8947]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-61887; File No. SR-NASDAQ-2010-041]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Make Conforming Changes to Certain Notification Requirements
April 12, 2010.
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 March 26, 2010, 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 modify the Listing Rules to make conforming
changes to certain notification requirements.
The text of the proposed rule change is below. Proposed new
language is in italic; 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://nasdaq.cchwallstreet.com.
---------------------------------------------------------------------------
5250. Obligations for Companies Listed on The Nasdaq Stock Market
(a) No change.
(b) Obligation to Make Public Disclosure
(1) No change.
(2) As set forth in Rule 5810(b), a Company that receives a
notification of deficiency from Nasdaq is required to make a public
announcement by filing a Form 8-K, where required by SEC rules, or by
issuing a press release disclosing receipt of the notification and the
Rule(s) upon which the deficiency is based. However, note that in the
case of a deficiency related to the requirement to file a periodic
report contained in Rule 5250(c)(1) or (2), the Company is required to
make the public announcement by issuing a press release. As described
in Rule 5250(b)(1) and IM-5250-1, [notice to the] the Company must
notify Nasdaq's MarketWatch Department [must be made] about the
announcement through the electronic disclosure submission system
available at www.nasdaq.net, except in emergency situations when
notification may instead be provided by telephone or facsimile. If the
public announcement is made during Nasdaq market hours, the Company
must notify MarketWatch at least ten minutes prior to the [public]
announcement. If the public announcement is made outside of Nasdaq
market hours, the Company must notify MarketWatch of the announcement
prior to 6:50 a.m. ET.
(c)-(f) No change.
* * * * *
5810. Notification of Deficiency by the Listing Qualifications
Department
When the Listing Qualifications Department determines that a
Company does not meet a listing standard set forth in the Rule 5000
Series, it will immediately notify the Company of the deficiency. As
explained in more detail below, deficiency notifications are of four
types:
(1)-(4) No change.
Notifications of deficiencies that allow for submission of a
compliance plan or an automatic cure or compliance period may result,
after review of the compliance plan or expiration of the cure or
compliance period, in issuance of a Staff Delisting Determination or a
Public Reprimand Letter.
(a) No change.
(b) Company Disclosure Obligations
A Company that receives a notification of deficiency, Staff
Delisting Determination, or Public Reprimand Letter is required to make
a public announcement disclosing receipt of the notification and the
Rule(s) upon which the deficiency is based. A Company that receives a
notification of deficiency or Staff Delisting Determination related to
the requirement to file a periodic report contained in Rule 5250(c)(1)
or (2) is required to make the public announcement by issuing a press
release disclosing receipt of the notification and the Rule(s) upon
which the deficiency is based, in addition to filing any Form 8-K
required by SEC rules. In all other cases, the Company may make the
public announcement either by filing a Form 8-K, where required by SEC
rules, or by issuing a press release. [Before release of the public
announcement, Companies must provide a copy of the announcement to
Nasdaq's MarketWatch Department.] As described in Rule 5250(b)(1) and
IM-5250-1, [notice to the] the Company must notify Nasdaq's MarketWatch
Department [must be made] about the announcement through the electronic
disclosure submission system available at www.nasdaq.net, except in
emergency situations when notification may instead be provided by
telephone or facsimile. If the public announcement is made during
Nasdaq market hours, the Company must notify MarketWatch at least ten
minutes prior to the [public] announcement. If the public announcement
is made outside of Nasdaq market hours, the Company must notify
MarketWatch of the announcement prior to 6:50 a.m. ET. The Company
should make the public announcement as promptly as possible but not
more than four business days following receipt of the notification.
(c)-(d) No change.
* * * * *
5840. Adjudicatory Process: General Information
(a)-(j) No change.
(k) Disclosure of Public Reprimand Letter
A Company that receives an Adjudicatory Body Decision that serves
as a Public Reprimand Letter must make a public announcement by filing
a Form 8-K, where required by SEC rules, or by issuing a press release
disclosing the receipt of the Decision, including the Rule(s) upon
which the Decision was based. [Prior to the release of the public
announcement, the Company must provide such disclosure to Nasdaq's
MarketWatch Department.] As described in Rule 5250(b)(1) and IM-5250-1,
[notice to the] the Company must notify Nasdaq's MarketWatch Department
[must be made] about the announcement through the electronic disclosure
submission system available at www.nasdaq.net, except in emergency
situations when notification may instead be provided by telephone or
facsimile. If the public announcement is made during Nasdaq market
hours, the Company must notify MarketWatch at least ten minutes prior
to the [public] announcement. If the public announcement is made
outside of Nasdaq market hours, the Company must notify MarketWatch of
the announcement prior to 6:50 a.m. ET. The Company should make the
public announcement [should be made] as
[[Page 20416]]
promptly as possible[,] but not more than four business days following
receipt of the Decision.
* * * * *
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 recently adopted changes to certain of its press release
requirements for Nasdaq-listed companies (the ``Press Release
Filing'').\5\ Subsequent to Nasdaq's filing and the Commission's
publication of this proposal,\6\ Nasdaq made an immediately effective
change to its rules to clarify when listed companies must provide
notification to Nasdaq of material information disclosed outside of
market hours.\7\ As revised, when the material information is made
public outside of Nasdaq market hours, Nasdaq companies must provide
notification of the information to MarketWatch by 6:50 a.m. ET. Nasdaq
proposes to make conforming changes to the rules modified in the Press
Release Filing, such that Rules 5250(b)(2), 5810(b) and 5840(k) would
each specify that if a required public announcement is made during
market hours, the company must notify Nasdaq's MarketWatch Department
at least ten minutes prior to making the announcement to the public;
otherwise the company must notify the MarketWatch Department prior to
6:50 am ET. Nasdaq also proposes to clarify that companies are not
required to use the electronic disclosure submission system to notify
MarketWatch in emergency situations, when notification may instead be
provided by telephone or facsimile.\8\ Finally, Nasdaq proposes to make
other non-substantive changes to these rules so that they each use
consistent language.
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\5\ Securities Exchange Act Release No. 61713 (March 15, 2010),
75 FR 13629 (March 22, 2010) (SR-NASDAQ-2010-006).
\6\ Securities Exchange Act Release No. 61461 (February 1,
2010), 75 FR 6241 (February 8, 2010) (SR-NASDAQ-2010-006).
\7\ Securities Exchange Act Release No. 61521 (February 16,
2010), 75 FR 8156 (February 23, 2010) (SR-NASDAQ-2010-008).
\8\ IM-5250-1 already provides that companies do not have to use
the electronic disclosure submission system in an emergency
situation and provides examples of emergency situations, such as the
lack of computer or internet access, technical problems, and cases
where no draft disclosure document is available.
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2. Statutory Basis
Nasdaq believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\9\ in general and with Sections
6(b)(5) of the Act,\10\ 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 change will
conform Nasdaq's notification requirements in the rules amended in the
Press Release Filing with Nasdaq's notification requirements for the
disclosure of material information, thereby reducing confusion among
listed companies and investors.
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\9\ 15 U.S.C. 78f.
\10\ 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 19(b)(3)(A) of the Act \11\ and
Rule 19b-4(f)(6) thereunder.\12\
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\11\ 15 U.S.C. 78s(b)(3)(A).
\12\ 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.
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A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \13\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \14\ 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.
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\13\ 17 CFR 240.19b-4(f)(6).
\14\ 17 CFR 240.19b-4(f)(6)(iii).
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The Commission believes that waiver of the operative delay is
consistent with the protection of investors and the public interest
because the proposed rule change would merely conform Rules 5250(b)(2),
5810(b) and 5840(k) to the notification requirements when companies
release material information outside of market hours in Nasdaq's other
rules,\15\ thereby reducing company and investor confusion. As such,
the Commission believes that the proposed rule change raises no new
regulatory issues. Additionally, Nasdaq's clarification that in
emergencies, companies are not required to notify MarketWatch through
the electronic disclosure system but may do so via telephone or
facsimile aligns the rules to the existing requirements of Nasdaq Rule
5250(b)(1) and IM-5250-1, further reducing confusion for companies.\16\
For these reasons, the Commission designates that the proposed rule
change become operative immediately upon filing.\17\
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\15\ See Nasdaq Rule 5250(b)(1) and IM-5250-1.
\16\ See supra note 8.
\17\ 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).
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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,
[[Page 20417]]
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 No. SR-NASDAQ-2010-041 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 No. SR-NASDAQ-2010-041. 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 Web site viewing and
printing 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 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 No. SR-NASDAQ-2010-041 and should be
submitted on or before May 10, 2010.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\18\
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\18\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-8947 Filed 4-16-10; 8:45 am]
BILLING CODE 8011-01-P
