[Federal Register Volume 67, Number 111 (Monday, June 10, 2002)]
[Notices]
[Pages 39771-39781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14433]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-45997; File No. SR-NASD-2002-58]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change and Amendment No. 1 Thereto by 
National Association of Securities Dealers, Inc. Relating to Temporary 
Approval of the Primex Auction System

May 29, 2002.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on April 30, 2002, the National Association of Securities Dealers, Inc. 
(``NASD'' or ``Association''), through its subsidiary, The Nasdaq Stock 
Market, Inc. (``Nasdaq''), filed with the Securities and Exchange 
Commission (``Commission'') the proposed rule change as described in 
Items I, II, and III below, which Items have been prepared by Nasdaq. 
Nasdaq filed Amendment No. 1 with the Commission on May 28, 2002.\3\ 
The Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.\4\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See letter from Peter R. Geraghty, Associate Vice President 
and Associate General Counsel, Nasdaq, to Katherine England, 
Assistant Director, Division of Market Regulation, Commission, dated 
May 1, 2002 (``Amendment No. 1''). In Amendment No. 1, Nasdaq 
removed language under NASD Rule 5013(c)(2) that was inadvertently 
included in its initial filing. Nasdaq originally removed this 
language in Amendment No. 1 to Nasdaq's Form PILOT filing for 
Primex.
    \4\ This proposed rule change, absent Amendment No. 1, was 
previously published in the Federal Register. See Securities 
Exchange Act Release No. 45982 (May 23, 2002). However, the 
Commission notes that although Amendment No. 1 is dated May 1, 2002, 
the Commission did not receive Amendment No. 1 until May 28, 2002, 
after publication of the initial proposed rule change. The 
Commission now publishes the proposed rule change, as amended by 
Amendment No. 1, for public comment.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Nasdaq proposes to continue operating Nasdaq's application of the 
Primex Auction System (``Primex'' or ``System''). 
The System began operating as a Pilot Trading System on December 17, 
2001, pursuant to Rule 19b-5 of the Act.\5\ Pursuant to paragraph (f) 
of Rule 19b-5 of the Act,\6\ Nasdaq is filing this proposed rule change 
effective immediately so that it can continue operating the System 
until the Commission grants permanent approval. Nasdaq has filed a 
companion proposed rule change which seeks permanent approval of 
Primex.\7\ The proposed rule language contained in the companion filing 
and set forth below is identical and is the same language that governs 
use of the System today.
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    \5\ 17 CFR 240.19b-5.
    \6\ 17 CFR 240.19b-5(f).
    \7\ See Securities Exchange Act Release No. 45983 (May 23, 2002) 
(publishing SR-NASD-2002-60 for notice and comment).
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5010. NASDAQ Application of the PRIMEX AUCTION 
SYSTEM
5011. Definitions
    For purposes of this Rule Series, unless the context requires 
otherwise:
    (a) ``Application'' or ``Nasdaq Application'' as used in this Rule 
Series, and ``Nasdaq Application of the Primex Auction System'' as used 
throughout the NASD Rules means the voluntary Nasdaq trading service 
facility that permits NASD member firms, among other things, to submit 
orders in Primex Eligible Securities to be exposed to a Crowd of 
Participants in an anonymous, electronic auction format for the purpose 
of obtaining an execution for their own account or the account of a 
customer; to have required reports of any resulting trades 
automatically disseminated to the public and the industry; and to 
``lock in'' these trades as necessary by sending both sides to the 
applicable clearing agency designated by the Participants involved for 
clearance and settlement, all in accordance with this Rule Series and 
other applicable rules and policies of Nasdaq.
    (b) ``Primex Auction System Participant,'' ``Participant,'' or 
``Participant Firm'' means a broker-dealer registered with the NASD 
that, when authorized, can access and participate in the Application 
for its customers or its own account, consistent with this Rule Series. 
Participants access the Application through one or more Subscribers 
associated with that Participant within the Application.
    (c) ``Subscriber'' means a user associated with a Participant who, 
when authorized, can access and participate in the Application on 
behalf of that Participant, consistent with this Rule Series. A user 
also can access and participate directly in the Application on its own 
behalf, but in the name of a Participant, subject to a sponsored 
arrangement with that Participant, and consistent with these Rules.
    (d) ``Firm Administrator'' means a Subscriber who, for a particular 
Participant, is authorized among other things to: (1) monitor and 
control access

[[Page 39772]]

to and participation in the Application by all of that Participant's 
Subscribers, including establishing Credit Limits for each of the 
Participant's Subscribers who access and participate in the Application 
on behalf or in the name of that Participant; and (2) view the status 
of the Clearing Limits applicable to the Participant overall.
    (e) ``Nasdaq Supervisor'' means the Nasdaq staff responsible for 
establishing and supervising certain operational functions with respect 
to the operation of the Application.
    (f) ``Credit Limits'' means the dollar amount of aggregated 
purchases or sales established within the Application by a 
Participant's Firm Administrator for each of the Participant's 
Subscribers which, when reached, causes the Application to: (1) Inhibit 
any future executions or the entry of future interest for that 
Subscriber; (2) cancel any orders and withdraw any Indications resident 
within the Application for that Subscriber; and (3) send a notice to 
that Subscriber, its Firm Administrator, and the Nasdaq Supervisor. 
Credit Limits may be established, monitored, and modified by the Firm 
Administrator on a real-time basis directly through the Application.
    (g) ``Clearing Limits'' means the dollar amount of aggregated 
purchases and sales (calculated separately and not netted) of all 
Subscribers, collectively for a Participant, effected through or in the 
name of that Participant, that is established within the Application 
for that Participant, which, when reached, causes the Application to: 
(1) Inhibit any future executions for all Subscribers associated with 
that Participant; (2) cancel any orders and withdraw any Indications 
resident within the Application for all Subscribers associated with 
that Participant; and (3) send a notice to that Participant's Firm 
Administrator, the Nasdaq Supervisor, and to the clearing broker for 
that Participant provided that the clearing broker also is a 
Participant. If the clearing broker is not a Participant in the 
Application, then the Nasdaq Supervisor will notify the clearing broker 
that the Clearing Limits have been reached as soon as practicable. 
Clearing Limits for a Participant may be monitored on a real-time basis 
by the Participant's Firm Administrator and can be established, 
monitored, and modified by the Firm Administrator of the Participant's 
clearing broker, provided the clearing broker also is a Participant. 
Clearing Limits also can be established and modified by the Nasdaq 
Supervisor on behalf of the clearing broker.
    (h) ``Crowd,'' ``Primex Crowd'' or ``Crowd Participant'' means 
Primex Auction System Participants that, when authorized, can access 
and participate in the Application consistent with this Rule Series by: 
(1) Submitting orders to be exposed to other Participants; (2) viewing 
orders submitted by other Participants; and (3) submitting Responses 
and Indications for the purpose of interacting with the orders of other 
Participants.
    (i) ``Watch List'' means the list of Primex Eligible Securities 
identified by a Crowd Participant for which the Crowd Participant will 
be notified by Nasdaq electronically when one or more orders in such 
securities is exposed in an Auction and made available for response by 
the Crowd.
    (j) ``Primex Auction Market Maker'' means a Participant that, when 
authorized, may participate in the Application: (1) as a Primex Auction 
Market Maker consistent with Rule 5020 with respect to those Primex 
Eligible Securities for which the Participant is registered as a Primex 
Auction Market Maker; and (2) as a Crowd Participant consistent with 
Rule 5019 with respect to any Primex Eligible Security.
    (k) ``Primex Eligible Security'' means any security listed on the 
Nasdaq Stock Market and any exchange-listed security eligible for 
participation in the Intermarket Trading System.
    (l) ``Mandatory Eligible Order'' means a public customer order, as 
more fully defined in Rule 5020, that a Primex Auction Market Maker 
must submit to the System for exposure in order for the Primex Auction 
Market Maker to maintain its status as such, subject to any exclusions 
or minimum permissible amount provided therein.
    (m) ``Market Order'' means an order submitted to the Application to 
purchase or sell a security at the most advantageous price(s) 
obtainable, without a specified, fixed price.
    (n) ``Fixed Price Order'' means an order submitted to the 
Application to purchase or sell a security at a specified, fixed price 
or better.
    (o) ``Minimum Relative Price Improvement'' means a condition that a 
Participant may attach to a market order consistent with Rule 5014(a), 
expressed in terms of the minimum relative price improvement required 
to execute the order. This condition is expressed in terms relative to 
the best bid (for orders to sell) or best offer (for orders to buy) 
displayed in the NBBO at the time the order is eligible to be executed 
against within the Application. Neither the existence nor amount of any 
Minimum Relative Price Improvement condition is displayed, exposed or 
communicated to any Participant when attached to an order.
    (p) ``Response'' means an instruction submitted to the Application 
by a Participant, for the purpose of responding to an order or orders 
being exposed to the Crowd, consistent with Rule 5018.
    (q) ``Predefined Relative Indication'' or ``PRI'' means an 
instruction that a Participant can submit to the Application for the 
purpose of responding to an order(s) in an Auction, and which does not 
contain a specific, fixed price, but is expressed in terms relative to 
the best bid (for PRIs to buy) or offer (for PRIs to sell) publicly 
displayed for the security, consistent with Rule 5018. While resident 
within the Application, PRIs are ranked to respond to incoming orders 
in relative price/time priority, but are not displayed, exposed or 
communicated to any other Participant.
    (r) ``Go-Along Indication'' means an instruction that a Participant 
can submit to the Application for the purpose of responding to an 
order(s) in an Auction, and which does not contain a specific, fixed 
price, consistent with Rule 5018. A Go-Along Indication will be 
triggered to respond to an Auction at a price equal to the best bid 
(for Go-Along Indications to buy) or best offer (for Go-Along 
Indications to sell) publicly displayed whenever there has been at 
least one contemporaneous Crowd execution at such bid or offer, 
provided there are no PRIs or other orders available to execute against 
the order(s) in the Auction. While resident within the Application, Go-
Along Indications are not displayed, exposed or communicated to any 
other Participant.
    (s) ``Auction'' means the automated process through which orders in 
Primex Eligible Securities are exposed to Crowd Participants. Orders 
for the same security being exposed simultaneously (i.e. those which 
have overlapping exposure periods) are available on an aggregate basis, 
in whole or in part, for interaction with other Crowd participants, but 
only during the period of overlapping exposure. An Auction begins when 
an order is accepted by the Application and exposed to the Primex 
Crowd, and ends whenever such order(s) (including any orders that 
subsequently join the Auction in progress) are completely executed or 
their exposure ceases.
    (t) ``Public Order'' or ``Public Customer Order'' means an order 
for the account of a customer, and not for the account of a broker-
dealer, regardless of whether the customer is that of the Participant 
entering the order or another

[[Page 39773]]

firm that has routed the customer order to the Participant.
    (u) ``Professional Order'' means an order for the proprietary 
account of a broker-dealer, regardless of whether the broker-dealer is 
a market maker or specialist, and regardless of whether it is the 
Participant's own order or the proprietary order of another broker-
dealer routed to the Participant.
    (v) ``Market Maker Guarantee'' means the feature within the 
Application that allows a Participant registered as a Primex Auction 
Market Maker to provide an automatic execution against public customer 
orders it submits to the Application for exposure in an Auction where 
such orders are not otherwise subject to an execution. The Application 
will automatically execute any unexecuted balance of the order against 
that Primex Auction Market Maker, after the Auction exposure period for 
the order has expired, consistent with Rule 5020. The Market Maker 
Guarantee shall be provided at a price equal to the best publicly 
quoted offer price (for orders to buy) or best publicly quoted bid 
price (for orders to sell) existing for the security at the time when 
such exposure period for the order has expired, for any amount of 
shares established by the Primex Auction Market Maker for the order.
5012. Access
    (a) The Application shall be available on a voluntary basis to any 
NASD member in good standing that chooses to register as a Participant 
in the Primex Auction System. Such registration shall be conditioned 
upon the Participant's initial and continuing compliance with the 
following requirements:
    (1) Execution of the necessary agreements with Nasdaq or its 
affiliate;
    (2) Membership in, or access arrangement with, a clearing agency 
registered with the Commission which maintains facilities through which 
Primex Auction System compared trades may be settled;
    (3) Compliance with all applicable rules and operating procedures 
of Nasdaq (including these rules) and the Commission;
    (4) Maintenance of the physical security of the equipment located 
on the premises of the Participant to prevent the improper use or 
access to Nasdaq systems, including unauthorized entry of information 
into the Primex Auction System; and
    (5) Acceptance and settlement of each trade that is executed 
through the facilities of the Primex Auction System, or if settlement 
is to be made through another clearing member, guarantee of the 
acceptance and settlement of such execution by the clearing member on 
the regularly scheduled clearing date.
    (b) Non-NASD members may access the Application in the name of a 
Participant by becoming a sponsored Subscriber of the Participant, 
provided the Participant and sponsored Subscriber have executed the 
necessary agreements with Nasdaq or its affiliate, and the NASD member 
Participant assumes the responsibilities set forth in paragraph (a) of 
this Rule 5012 with respect to any activity conducted by the sponsored 
Subscriber.
    (c) The Application may be made available through Nasdaq-provided 
network(s) via:
    (1) Primex Auction System Workstation Service;
    (2) An Application Programming Interface (``API''); or
    (3) A FIX protocol interface. Certain functionality of the 
Application also may be made available via Computer to Computer 
Interface (CTCI).
5013. Order Acceptance and Exposure
(a) Order Types
    The Application shall accept the following types of orders in 
Primex Eligible Securities, subject to any conditions or match 
parameters attached thereto to the extent permitted by the Application 
and Rule 5014, and other rules applicable to Participants with respect 
to the entry of orders. Conditions and match parameters, to the extent 
attached to an order, are never communicated to any Participant:
    (1) Market Orders;
    (2) Fixed Price Orders, when the specified price is equal to or 
between the best bid or offer publicly displayed, or is a buy (sell) 
order priced higher (lower) than the best offer (bid) publicly 
displayed. Fixed Price Orders to buy (sell) priced below (above) the 
best bid (offer) publicly displayed will be rejected.
    For example: If the best bid and offer publicly displayed in Nasdaq 
is $20-$20.10, then the Application will accept orders to buy priced at 
$20.00 and higher, including orders to buy priced higher than the offer 
of $20.10 (although no execution can take place outside of the NBBO 
prevailing at the time of execution). An order submitted to buy at 
$19.95, however, would not be accepted by the Application in this 
situation and will be returned to the Participant that entered it.
(b) Order Size
    The Application will accept orders that are either round lots, or 
mixed lots. Odd lot orders will not be accepted.
(c) Exposure Times Available
    (1) The Application allows Participants to expose orders to the 
Primex Crowd. Only the size associated with an order is communicated to 
the Crowd, and only for the time during which the order is available 
for execution. Crowd Participants may monitor the availability of 
orders exposed in an auction through the use of their Watch List.
    (2) For each Market Order submitted to the Application, a 
Participant can specify a maximum exposure time of either 0 (i.e., 
immediate), 15, or 30 seconds.
    (3) Fixed Price Orders that are accepted by the Application can 
only be exposed for an immediate execution, in whole or in part).
5014. Conditions and Match Parameters
(a) For All Participants
    Subject to any other rules applicable to Crowd Participants and 
Primex Auction Market Makers with respect to the entry of orders, any 
Participant may enter an order with the following condition attached:
Minimum Relative Price Improvement
    Market Orders may be submitted with a condition for Minimum 
Relative Price Improvement. The Minimum Relative Price Improvement 
established for an order is the minimum amount of price improvement 
superior to the best bid or offer publicly displayed (as applicable) 
that the order must receive before it may be executed against in whole 
or in part by any interest from the Crowd. This condition must be 
attached before the order is entered into the Application. Such 
condition may be expressed only in terms relative to the best bid or 
offer on the opposite side of the market existing at such time when any 
Indication, Response, or other order is or becomes available to 
interact with the order in an Auction, as permitted by the Application 
and this Rule Series. Neither the existence nor amount of any Minimum 
Relative Price Improvement condition is displayed, exposed or 
communicated to any Participant when attached to an order. This 
condition shall not be available for orders submitted solely for the 
proprietary account of a Nasdaq market maker or CQS market maker 
(including Primex Auction Market Makers) and not involving a customer 
order.
    For example: An order to buy 500 shares entered into the 
Application may contain a condition for Minimum Relative Price 
Improvement requiring that any Indication or Response (or sell order 
exposed in an Auction and which

[[Page 39774]]

is available for a match) provide to that order at least a certain 
amount (e.g., 3 cents) of price improvement superior to the best offer 
publicly displayed at such time the Indication, Response or sell order 
is available to be matched with the order to buy.
(b) For Primex Auction Market Makers Only
    A Participant registered as a Primex Auction Market Maker for a 
particular security is entitled, but not required, to enter customer 
orders with any of the following match parameters as discussed below. 
These allow the Primex Auction Market Maker to provide liquidity in 
addition to that which may be provided by the Crowd. The match 
parameters contained in this paragraph are only available to 
Participants who are Primex Auction Market Makers, and only for those 
securities for which they are so registered. Neither the existence nor 
type of any match parameter associated with an order is displayed, 
exposed or communicated to any other Participant:
(1) Two Cent Match
    A Participant registered as a Primex Auction Market Maker for a 
particular security may enter an order with the Two Cent Match 
parameter.
    (A) If there is interest from the Crowd that can satisfy the order, 
the order entered with the Two Cent Match will be executed against such 
interest by the Crowd during its exposure, provided that such Crowd 
interest offers to provide price improvement greater than two cents 
superior to the best quote publicly displayed in the NBBO at the time 
such Crowd interest is available.

    Note: Because the system will never execute an order at a price 
outside of the NBBO, any Crowd interest offering an amount of price 
improvement that would potentially be outside of the NBBO will be 
executed, if matched with an order, at a price bounded by the NBBO, 
in effect adjusting the execution price to allow for the maximum 
amount of price improvement within that NBBO without trading through 
the NBBO at that time. As a result, it is possible that an order 
subject to the Two Cent Match parameter may be matched with interest 
from the Crowd, and not the Primex Auction Market Maker that entered 
it, notwithstanding the fact that the actual execution price results 
in price improvement of two cents or less. This can happen, for 
example, where there is Crowd interest available that is offering 
three cents of relative price improvement, but the Application 
causes the actual execution price to be equal to two cents of price 
improvement, due to a prevailing NBBO spread of two cents at the 
time of execution.

    (B) If there is interest from the Crowd that can satisfy the order 
but such Crowd interest would only offer price improvement of two cents 
or less in relation to the best quote publicly available, then this 
will immediately cause the Application to execute the entire order 
against the Primex Auction Market Maker that entered it, and not 
against such Crowd interest, thereby allowing the execution of that 
order to be retained by the Primex Auction Market Maker. In this 
situation, the entire order will be executed with that Primex Auction 
Market Maker at the best price the Crowd interest would have otherwise 
provided, regardless of the size associated with such Crowd interest.
    (C) Any unexecuted balance of the order remaining at the end of its 
exposure will be executed against the Primex Auction Market Maker. With 
respect to Market Orders, this execution price will be at the best 
quote then publicly displayed. With respect to Fixed Price Orders, the 
execution price will be the price specified in the Fixed Price Order, 
unless such price is outside the best quote publicly displayed, in 
which case the execution price will be at the best quote publicly 
displayed in the NBBO.
    (D) A Primex Auction Market Maker may enter customer orders of any 
size with the Two Cent Match parameter.
    (E) A Primex Auction Market Maker that enters a Market Order with 
the Two Cent Match parameter may elect immediate (``zero seconds''), 15 
or 30 second maximum exposure duration for that order. A Fixed Price 
Order can be exposed only for an immediate ``zero second'' auction.
(2) 50% Match
    A Participant registered as a Primex Auction Market Maker for a 
particular security may enter an order a 50% Match parameter.
    (A) Orders entered with the 50% Match parameter will be executed 
against any interest by the Crowd that satisfies the order during its 
exposure at the price(s) and size of such Crowd interest, for no more 
than 50% of the order. Any execution with the Crowd will immediately 
cause the Application to provide the order with an additional execution 
of like size and price against the Primex Auction Market Maker that 
entered the order.
    (B) Any unexecuted balance of the order remaining at the end of its 
exposure will be automatically executed against the Primex Auction 
Market Maker. With respect to Market Orders, this execution price will 
be at the best quote then publicly displayed. With respect to Fixed 
Price Orders, the execution price will be at the price specified in the 
Fixed Price Order, unless such price is outside the best quote publicly 
displayed, in which case the execution price will be at the best quote 
publicly displayed.
    (C) A Primex Auction Market Maker may enter customer orders of any 
size with the 50% Match parameter.
    (D) A Primex Auction Market Maker that enters a Market Order with 
the 50% Match parameter may elect immediate (``zero seconds''), 15 or 
30 second maximum exposure duration for that order. A Fixed Price Order 
can be exposed only for an immediate ``zero second'' auction.
    For example: The best bid and offer publicly displayed for a 
security is $20-20.10. A Primex Auction Market Maker for that security 
enters into the Application a Market Order to buy 2,000 shares for a 
customer and selects the 50% Match Parameter. The Participant selects 
an exposure time of 30 seconds. During its exposure, the order elicits 
the following executions by other Crowd Participants (which could be in 
the form of Indications, Responses, or contraside orders to sell): 500 
at $20.04, and 200 at $20.05. The Application will execute these 
transactions, and immediately match each one as they occur by executing 
an additional 500 and 200 shares, at $20.04 and $20.05, respectively, 
against the Primex Auction Market Maker entering the order. If there is 
no other interest from the Crowd at the end of the 30 second exposure 
period, the Application will cause the remaining balance of 600 shares 
to be automatically executed against the Primex Auction Market Maker 
entering the order at the best offer publicly displayed at that time. 
Assuming the best offer publicly displayed is still $20.10 at this 
time, this would result in the Primex Auction Market Maker selling the 
balance of 600 shares to the customer at $20.10.
(3) Block Facilitation Match
    A Participant registered as a Primex Auction Market Maker for a 
particular security may enter an order with a Block Facilitation match 
parameter, provided the order is for at least 10,000 shares. The Primex 
Auction Market Maker may elect to expose the order in an Auction for a 
maximum of 0, 15, or 30 seconds: Any Crowd interest that executes 
against the order during the selected exposure period, up to a maximum 
of 50% of the order size, will be immediately matched with an execution 
of like size and price against the entering Participant until the order 
is fully executed. If any unexecuted portion remains at the end of the 
exposure period, it will be automatically

[[Page 39775]]

executed against the entering Participant. With respect to Market 
Orders, the execution price will be the then existing best offer (for 
orders to buy) or best bid (for orders to sell) publicly displayed. 
With respect to a Fixed Price Order, the execution price will be the 
price specified in the Fixed Price Order, unless such price is outside 
of the best quote publicly displayed, in which case the execution price 
will be at the best quote publicly displayed.
    For example: The best bid and offer publicly displayed is $20-
20.10. A Participant enters into the Application an order to buy a 
block of 10,000 shares for a customer and selects the Block 
Facilitation Match Parameter. The Participant selects an exposure time 
of 15 seconds. During its exposure, the order elicits the following 
executions by other Crowd Participants (in the form of Indications, 
Responses, or contra-side orders to sell): 1000 at $20.05, and 2000 at 
$20.07. The Application will execute these transactions, and 
immediately match each one as they occur by executing an additional 
1000 and 2000 shares, at $20.05 and $20.07, respectively, against the 
Participant entering the block order. If there is no other interest 
from the Crowd at the end of the 15 second exposure period, the 
Application will cause the remaining balance of 4000 shares to be 
automatically executed against the Participant entering the block order 
at the best offer publicly displayed at that time. Assuming the best 
offer publicly displayed is still $20.10 at this time, this would 
result in the Participant selling the balance of 4000 shares to the 
customer at $20.10.
(4) Clean Cross
    A Participant registered as a Primex Auction Market Maker for a 
particular security may enter a Clean Cross order for the accounts of 
two separate customers where the order represents both sides of a cross 
for at least 10,000 shares to be exposed to the Crowd in an immediate, 
zero second Auction. The two sides will be executed against each other 
at the midpoint of the best bid and offer publicly displayed unless 
superior-priced interest within the Application breaks up one or both 
sides of the cross. In order to break up a side of the cross, there 
must be Crowd contra-side interest resident within the Application 
(e.g., resident PRIs) that totals at least 10,000 shares in the 
aggregate at a price or prices that are all superior to the bid-ask 
midpoint by at least the nearest whole cent. Any portion of a side that 
is not executed against either the opposite side of the Clean Cross 
order or contra-side interest resident within the Application will be 
returned unexecuted.
5015. Public and Professional Orders
    All orders submitted to the Application shall be identified as 
either a Public Order or a Professional Order, as those terms are 
defined in Rule 5011. This Public or Professional status is not 
displayed, exposed or communicated to any other Participant in the 
Application, but is used to determine whether an order is available to 
interact with the Response or Indication of a Crowd Participant. As 
indicated in Rule 5018(e), a Participant that responds to orders in an 
Auction can choose whether its Responses and Indications interact with 
all orders (both Public and Professional Orders) or just Public Orders. 
When entering an order, however, a Participant entering an order does 
not have the ability to select or control whether Public or 
Professional interest may interact with the order.
5016. Option to Route Orders Outside of the System After Exposure in 
the Application
    (a) All Market Orders submitted to the Application shall include an 
identifier as to whether any unexecuted balance, after the order is 
exposed to the Crowd, should be forwarded to SuperSoesSM, in 
the case of a Nasdaq security, or to ITS/CAES, in the case of an 
exchange-listed security, or whether the order should be returned to 
the entering Participant. This option to route orders outside of the 
Application is available for Market Orders only. Orders submitted to 
the Application with a specified, fixed price cannot be automatically 
forwarded to Nasdaq's other execution systems. Routing identifiers are 
not displayed, exposed or communicated to any other Participant in the 
Application.
    (b) With respect to exchange-listed securities, only Primex Auction 
Market Makers (which also must be ITS/CAES market makers with respect 
to these securities, as required by these rules) may elect to have 
Market Orders in exchange-listed securities routed out to ITS when 
there is a balance remaining following exposure in the System, 
provided, however, that customer orders so routed must first be exposed 
in the Application for at least 15 seconds. In addition, to the extent 
the best price publicly quoted at that time is available within 
Nasdaq's CAES system, regardless of whether the same price also is 
being publicly quoted by another ITS market center, such orders 
designated for routing to ITS/CAES will be delivered to CAES for 
execution up to the size publicly quoted by CAES participants and will 
not be routed out to another market center through ITS.
5017. Short Sales
    Participants are responsible for complying with applicable short 
sale rules when using the Application. No Participant shall submit to 
the Application an order for a security that, if executed, would result 
in a ``short sale'' as that term is defined in Exchange Act Rule 3b-3, 
unless the transaction would be exempt from, or otherwise permissible 
under, the requirements of NASD Rule 3350 or Exchange Act Rule 10a-1, 
as applicable.
5018. Responses and Indications
    (a) General--Participants may submit Responses and Indications to 
the Application, consistent with this Rule Series, for the purpose of 
interacting with orders in an Auction, as described herein. Responses 
and Indications are not displayed, exposed or communicated to any 
Participant, except to the extent they result in an execution with an 
order. Responses and Indications cannot execute against other Responses 
or Indications.
    (b) Responses--Responses are instructions submitted to the 
Application by Participants to interact with available orders exposed 
in an Auction. Responses may be either a Fixed Price Response (e.g. buy 
1000 at $20) or a Relative Priced Response (e.g., buy 1000 at the bid 
plus 3 cents). All Responses must be entered in an amount of at least 
one round lot, but also may be for a mixed lot.
    (c) Indications--Indications are instructions, with the 
characteristics set forth below, submitted to the Application by 
Participants to interact with orders exposed in an Auction. An 
Indication may be a Predefined Relative Indication (``PRI'') or a Go-
Along Indication.
(1) Predefined Relative Indications
    (A) PRIs can be submitted to the Application for the purpose of 
automatically responding to an Auction at a point in time when one or 
more orders becomes available. PRIs have no specific, fixed price, but 
are expressed at time of entry in terms relative to the best bid or 
offer publicly displayed at such time when the Application activates 
the PRI against orders in an Auction. While resident within the 
Application, PRIs are ranked in relative price/time priority among all 
other PRIs resident within the Application and any same-side orders 
currently being exposed in an Auction, as indicated in paragraph (e) of 
this Rule. Neither the existence nor terms of a PRI are

[[Page 39776]]

displayed, exposed or communicated to any other Participant while 
resident in the Application. When activated by the Application, a PRI 
will match against orders in an Auction at a price equal to the best 
bid (for PRIs to buy) or offer (for PRIs to sell) publicly displayed at 
that time in the NBBO, plus or minus (respectively) the relative price 
term associated with that PRI; provided that such price also satisfies 
any applicable condition associated with the order(s) in the Auction to 
which it is responding.
    (B) At the time of its original entry, each PRI submitted to the 
Application must be for the following share amounts:
    (i) NBBO PRIs must be for at least 3000 shares upon entry;
    (ii) NBBO .01 or .02 must be for at least 2000 shares 
upon entry;
    (iii) NBBO .03 or greater must be for at least 1000 
shares upon entry.
    (C) The Application will accept a PRI with the following amounts of 
relative price improvement:
    (i) If the NBBO, at the time the PRI is submitted, has a spread 
equal to three cents or more, the PRI will be accepted if it offers any 
amount of price improvement between zero and the actual NBBO spread 
prevailing at that time;
    (ii) if the NBBO, at the time the PRI is submitted, has a spread 
that is less than three cents, the PRI may offer any amount of price 
improvement between zero and three cents.
    (D) Participants may elect to limit their exposure when using PRIs 
by entering a Per Auction Maximum size for each PRI submitted. The Per 
Auction Maximum represents the maximum share amount of a PRI available 
for a single Auction. It cannot be greater than the size of the PRI, 
but is subject to the same minimum values applicable to the original 
entry of a PRI with that relative price term. Once the Per Auction 
Maximum, if any, for a PRI is exhausted, the Participant will have 15 
seconds to withdraw the PRI, during which time no further executions 
against that PRI will occur. In the absence of a withdrawal during this 
period, the Application will restore the PRI up to the Per Auction 
Maximum and the PRI will become available again for any subsequent 
Auctions to the extent there is an eligible balance remaining for that 
PRI. For purposes of relative price/time priority, the restored PRI 
will receive a new timestamp within the Application.
    (E) Participants may select a maximum residency period of one (1) 
or five (5) days, during which time the PRI remains resident within the 
Application unless fully executed or withdrawn. The Application will 
automatically withdraw any PRIs that remain at the end of the 
applicable residency period.
(2) Go-Along Indications
    (A) A Go-Along Indication can be submitted to the Application for 
the purpose of automatically responding in an Auction at a point in 
time when one or more orders becomes available in an Auction and there 
has been at least one other contemporaneous Crowd execution within the 
Application at the NBBO; provided there are no PRIs available or orders 
being exposed in an Auction (executions resulting from a Primex Auction 
Market Maker Guarantee do not trigger Go-Along Indications). Go-Along 
Indications have no specific, fixed price when entered, but will match 
against orders at a price equal to the best bid (for Go-Along 
Indications to buy) or best offer (for Go-Along Indications to sell) 
that exists at such time the Go-Along Indication is activated. While 
resident within the Application, Go-Along Indications are not 
displayed, exposed or communicated to any other Participant.
    (B) At the time of its original entry, each Go-Along Indication 
submitted to the Application must be for at least 10,000 shares.
    (C) Participants may select a maximum residency period of one (1) 
or five (5) days, during which time the Go-Along Indication remains 
resident within the Application unless fully executed or withdrawn. The 
Application will automatically withdraw any Go-Along Indications that 
remain at the end of the applicable residency period.
    (d) Executions Bounded by the NBBO--The Application will never 
execute an order outside of the NBBO prevailing at the time of 
execution. Indications such as PRIs that potentially would offer an 
amount of price improvement that could result in an execution outside 
of the NBBO will be priced at the NBBO if matched with an order, in 
effect providing the maximum amount of price improvement permissible 
within the NBBO at that time.
    (e) Relative Priority of Predefined Relative Indications and 
Orders.
    (1) While resident within the Application, Predefined Relative 
Indications are ranked in relative price/time priority while they await 
activation against incoming orders notwithstanding that PRIs have no 
specified, fixed price associated with them. For example, among 
resident PRIs for the same security on the same side of the market, 
PRIs offering greater relative price improvement are ranked ahead of 
PRIs offering less relative price improvement. PRIs offering the same 
relative amount of price improvement are ranked by time of entry (or 
the time the Indication was restored after exhausting its Per Auction 
Maximum).
    (2) Market Orders being exposed within the Application also are 
ranked in relative price/time priority during the life of their 
exposure, notwithstanding that Market Orders have no specified, fixed 
price associated with them. For example, among Market Orders in the 
same security being exposed on the same side of the market, those 
orders not seeking any relative price improvement are ranked ahead of 
orders seeking some relative amount of Minimum Relative Price 
Improvement. Orders seeking a greater relative amount of Minimum 
Relative Price Improvement are ranked behind orders seeking a lesser 
relative amount of Minimum Relative Price Improvement. Orders seeking 
the same relative amount of price improvement are ranked by time of 
entry.
    (3) Among and between Indications and orders on the same side of 
the market, the relative price/time priorities for each are integrated, 
based on their respective ranking relative to the best bid and offer 
publicly displayed. The Application recalculates and maintains these 
relative priorities whenever there is a change in the best bid or offer 
prices publicly displayed in the NBBO. Market Orders that are matched 
with other Market Orders being auctioned are executed at the midpoint 
of the best bid and offer publicly displayed, provided that such price 
satisfies any condition for Minimum Relative Price Improvement 
associated with each order.
    (f) Responding to All Orders or Public Orders Only--All Responses 
and Indications shall include an identifier as to whether it may 
interact with either: (1) All available orders (both Public Orders and 
Professional Orders); or (2) Public Orders only. Such identifier is not 
displayed, exposed or communicated to any Participant at any time, but 
is used by the Application for determining the universe of orders with 
which the Response or Indication may interact.
5019. Crowd Participation
    (a) There are two levels of participation in the Application: Crowd 
Participant and Primex Auction Market Maker. Becoming a Participant in 
the Application automatically entitles the Participant to be a Crowd 
Participant for any security, allowing participation consistent with 
this Rule 5019. A Crowd Participant may also choose to register as a 
Primex Auction Market Maker, but

[[Page 39777]]

only on a security-by-security basis, as set forth in Rule 5020, and 
only consistent with the requirements for participation under that 
Rule.
    (b) Unless otherwise specified, a Crowd Participant may enter 
orders, Indications, and Responses in any Primex Eligible Security at 
any time, for its own account or for the account of a customer. Crowd 
Participants have no mandatory obligation to submit to the Application 
any order at any time.
5020. Market Maker Participation
    (a) A Participant may register as a Primex Auction Market Maker in 
one or more Primex Eligible Securities, and may maintain such 
registration while in compliance with the requirements of this Rule. 
Unless otherwise specified, a Primex Auction Market Maker is 
automatically subject to the same rights and obligations of Crowd 
Participants pursuant to Rule 5019 with respect to customer orders in 
any and all Primex Eligible Securities. In addition, a Primex Auction 
Market Maker is entitled, but not obligated, to use either of the 
following features of the Application when submitting customer orders, 
but only with respect to those securities in which it is currently 
registered as a Primex Auction Market Maker:
    (1) A Primex Auction Market Maker, for securities in which it is 
registered as such, may submit customer orders to the Application with 
any of the available match parameters that enable the Primex Auction 
Market Maker to exercise certain matching rights facilitated by the 
Application, as set forth in Rule 5014(b). When associated with an 
order, these match parameters are not displayed, exposed or 
communicated to any other Participant; or
    (2) A Primex Auction Market Maker, for securities in which it is 
registered as such, may submit customer orders to the Application with 
a Market Maker Guarantee enabling the Primex Auction Market Maker to 
guarantee an execution within the Application where such orders are not 
otherwise subject to an execution as a result of either satisfactory 
Crowd interest or matching rights processing elected by the Primex 
Auction Market Maker pursuant to Rule 5014(b) for the order.
    (i) Public customer orders of any size are eligible for the Market 
Maker Guarantee. The Application will facilitate the Market Maker 
Guarantee by automatically executing any unexecuted balance of the 
order against the Primex Auction Market Maker that submits the order, 
after the Auction exposure period for the order has expired.
    (ii) The Market Maker Guarantee is automatically provided at a 
price equal to the best publicly quoted offer price (for orders to buy) 
or best publicly quoted bid price (for orders to sell) existing for the 
security at the time when such exposure period for the order has 
expired (including ``zero second'' auctions), for any amount of shares 
established by the Primex Auction Market Maker for the order.
    (b) With respect to each security in which a Participant is 
registered as a Primex Auction Market Maker, the Participant shall:
    (1) If the security is a Nasdaq-listed security, be registered as a 
Nasdaq market maker in such security (or become so registered), and at 
all times comply with all applicable NASD rules and interpretations 
relating to Nasdaq market makers, including the requirement to enter 
and maintain two-sided quotations in Nasdaq for such security, subject 
to the excused withdrawal procedures set forth in Rule 4619;
    (2) if the security is an ITS/CAES eligible security, be registered 
as an ITS/CAES Market Maker (or become so registered) in such security, 
and at all times comply with all applicable NASD rules and 
interpretations relating to ITS/CAES Market Makers, including the 
requirement to enter and maintain two-sided quotations in CQS for such 
security, subject to the excused withdrawal procedures set forth in 
Rule 6350;
    (3) submit to the Application a minimum of 80% \*\ of the number of 
its Mandatory Eligible Orders (including customer orders of another 
broker-dealer that has directed such orders to the Participant) as soon 
as practicable upon receipt by the Participant, for the purpose of 
exposing such orders to the Primex Crowd. Mandatory Eligible Orders do 
not include:
---------------------------------------------------------------------------

    \*\ The 80% test will be applied on a quarterly basis, and will 
be phased in as follows: For the calendar quarters commencing on 
October 1, 2001; January 1, 2002; April 1, 2002; and July 1; 2002, 
any participant may register in any eligible security as a Primex 
Auction Market Maker and maintain that status during such calendar 
quarters without regard to the percentage of its orders it submits 
to the System for such security during that time, provided it also 
satisfies all other requirements of a Primex Auction Market Maker 
pursuant to these rules.
    Beginning with the calendar quarter that commences on October 1, 
2002, a participant previously registered as a Primex Auction Market 
Maker for a particular security may maintain its status as such 
until December 31, 2002 only if it submitted at least 50% of its 
Mandatory Eligible Orders during the calendar quarter that commences 
on July 1, 2002 (or during such portion of the calendar quarter that 
commences on July 1, 2002 in which the participant was so registered 
if the participant registered in mid quarter), provided it also 
satisfies all other requirements of a Primex Auction Market Maker 
pursuant to these rules. A participant that is newly registering as 
a Primex Auction Market Maker for a particular security any time 
after the start of the calendar quarter that commences on October 1, 
2002 may maintain its status as such until the end of the calendar 
quarter in which it registered without regard to the percentage of 
its orders it submits to the System for such security during that 
time.
    Beginning with the calendar quarter that commences on January 1, 
2003, and each calendar quarter thereafter, a participant previously 
registered as a Primex Auction Market Maker for a particular 
security may maintain its status as such until the end of that 
calendar quarter only if it submitted at least 80% of its Mandatory 
Eligible Orders during the previous calendar quarter (or during the 
portion of such previous calendar quarter in which it was so 
registered if the participant registered in mid quarter), provided 
it also satisfies all other requirements of a Primex Auction Market 
Maker pursuant to these rules.
---------------------------------------------------------------------------

    (A) any customer order that is greater than 1099 shares at 
origination, except that nothing in these rules prohibits a Participant 
from submitting orders of greater size at any time;
    (B) any customer order that, when initially received by the 
Participant, is a Fixed Price Order with a specified price that is not 
eligible for acceptance by the Application because it is priced outside 
the NBBO and is not otherwise marketable pursuant to Rule 5013(a)(2), 
regardless of whether or not the order becomes eligible for acceptance 
and exposure at a subsequent point in time;
    (C) any customer order placed by a customer who authorizes the 
Participant to not expose the order, either at the time the order is 
placed or prior thereto pursuant to an individually negotiated 
agreement with respect to such customer's orders;
    (D) any customer order that is an odd lot order (e.g., less than 
100 shares);
    (E) any customer order to be executed outside of the hours of 
operation of the Application; or
    (F) any other order that would not fall within the definition of 
the term ``covered order'' as defined in Exchange Act Rule 11Ac1-
5(a)(8).
    (4) not attach a condition for Minimum Relative Price Improvement 
to any order submitted to the Application solely for its own principal 
account and not involving a customer order.
5021. Anonymity, Execution, Reporting, and Clearing
    (a) Anonymity--The Application will process all activity among 
Participants on an anonymous basis until the end of the day. After 
facilitating an execution, the Application will send an execution 
report to all Participants involved as soon as practicable. The 
execution report will indicate the details of the transaction, but will 
not contain the identity of the contra-party. At the end of each 
trading day, the actual contra-

[[Page 39778]]

party for executions obtained within the Application will be made 
available to the Participants involved through Nasdaq's systems. For 
regulatory and other necessary purposes, the NASD and Nasdaq will have 
the ability to determine the identity of the actual contra-parties at 
any time.
    (b) Tape Reporting and Clearing--Matches within the Application are 
executed and reported through Nasdaq systems for public tape reporting 
and forwarding to NSCC for clearing, where necessary. Participants (or 
their clearing brokers) are the parties responsible for the clearance 
and settlement of all trades executed through the Application. Once a 
transaction is executed, Participants do not have the ability within 
the Application to modify or reallocate any portion of the execution to 
a clearing broker other than the clearing broker that the Application 
associates with the Participant at the time of execution. Neither the 
NASD (and its affiliates) nor any operator or administrator of the 
Primex Auction System shall be directly or indirectly a party to any 
transaction entered into, matched, or otherwise effected through the 
Application, notwithstanding that, for the remainder of the trading day 
after a transaction, the actual contra-parties have not had their 
identities disclosed to each other by the Application.
5022. Credit Limits and Clearing Limits
    (a) Credit Limits--The Application shall allow a Participant's Firm 
Administrator to establish Credit Limits for each of its associated 
Subscribers, including sponsored Subscribers, on an individual 
Subscriber basis. The limits are established as a dollar amount of 
aggregated purchases or sales which, when reached, causes the 
Application to: (1) Inhibit any future executions or the entry of 
future interest for that Subscriber; (2) cancel any orders and withdraw 
any Indications resident within the Application for that Subscriber; 
and (3) send a notice to that Subscriber, its Firm Administrator, and 
the Nasdaq Supervisor. Credit Limits may be monitored and modified by 
the Firm Administrator on a real-time basis directly through the 
Application.
    (b) Clearing Limits--The Application shall allow a Participant's 
clearing broker to establish Clearing Limits within the Application for 
the Participant on a firm-wide basis. The limits are established as a 
dollar amount of both purchases and sales (calculated separately, and 
not netted) of all Subscribers, collectively for a Participant, 
effected within the Application through or in the name of that 
Participant. When the Clearing Limits for a Participant are reached, 
the Application will: (1) Inhibit any future executions for all 
Subscribers associated with that Participant; (2) cancel any orders and 
withdraw any Indications resident within the Application for all 
Subscribers associated with that Participant; and (3) send a notice to 
that Participant's Firm Administrator, the Nasdaq Supervisor, and to 
the clearing broker for that Participant provided that the clearing 
broker also is a Participant. Clearing Limits for a Participant may be 
monitored on a real-time basis by the Participant's Firm Administrator 
and can be established, monitored, and modified by the Firm 
Administrator of the Participant's clearing broker, provided the 
clearing broker also is a Participant. If the clearing broker is not a 
Participant in the Application, then the Nasdaq Supervisor will notify 
the clearing broker that the Clearing Limits have been reached as soon 
as practicable. Clearing Limits also can be established and modified by 
the Nasdaq Supervisor on behalf of the clearing broker.
5023. Hours of Operation
    (a) The Application is available for executing securities 
transactions during regular Nasdaq trading hours whenever there is a 
free and open quote (i.e., not locked or crossed), subject to the 
general authority and regulatory responsibilities of Nasdaq or its 
affiliates in operating the Application as a facility of Nasdaq or its 
affiliate (including but not limited to its authority to implement 
trading halts in one or more securities due to regulatory reasons, 
market-wide emergencies, and system malfunctions).
    (b) Nasdaq may permit certain functionality of the Application to 
be available outside of the time period during which securities 
transactions may be effected through the Application, including but not 
limited to, the monitoring, entering, canceling, withdrawing, or 
modifying resident Indications, Credit Limits, or Clearing Limits.
5024. Limitation of Liability
    (a) Neither Nasdaq, the NASD (including their affiliates), Primex 
Trading N.A., L.L.C. (including its affiliates) nor any other operator, 
licensor, or administrator (including their affiliates) of the Nasdaq 
Application of the Primex Auction System shall have any liability for 
any loss, damages, claim or expense arising from or occasioned by any 
inaccuracy, error or delay in, or omission of or from: (1) The Nasdaq 
Application; or (2) the collection, processing, reporting or 
dissemination of any information derived from the Nasdaq Application, 
resulting either from any act or omission by Nasdaq or any affiliate, 
or any operator, licensor, or administrator of the Nasdaq Application 
or from any act, condition or cause beyond the reasonable control of 
Nasdaq or any affiliate, operator, licensor or administrator of the 
Nasdaq Application, including, but not limited to, flood, extraordinary 
weather conditions, earthquake or other act of nature, fire, war, 
insurrection, riot, labor dispute, accident, action of government, 
communications or power failure, or equipment or software malfunction. 
If a Participant that enters, authorizes its Subscribers (including 
sponsored Subscribers) to enter, or is authorized by other Participants 
to enter orders, Responses, or Indications that result in a transaction 
through the Application fails to perform its settlement or other 
obligations under the terms of such transaction, the NASD (and its 
affiliates) and Primex Trading N.A., L.L.C. (and its affiliates) shall 
have no liability for such failure to settle.
    (b) Neither Nasdaq, the NASD (including their affiliates), Primex 
Trading N.A., L.L.C. (including its affiliates) nor any other operator, 
licensor, or administrator (including their affiliates) of the Nasdaq 
Application of the Primex Auction System makes any express or implied 
warranties or conditions to Participants or their associated 
Subscribers (including sponsored Subscribers) as to results that any 
person or party may obtain from the Nasdaq Application for trading or 
for any other purpose, and all warranties of merchantability or fitness 
for a particular purpose or use, title, and non-infringement with 
respect to the Nasdaq Application are hereby disclaimed.

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.

[[Page 39779]]

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

(1) Purpose
    The Primex Auction System is a facility of Nasdaq that has been 
operating as a Pilot Trading System, as defined in paragraph (c)(2) of 
Rule 19b-5 of the Act.\8\ As such, Nasdaq was not required to file a 
proposed rule change under Rule 19b-4 of the Act\9\ as long as the 
System maintained its status as a Pilot Trading System. Under paragraph 
(c)(2) of Rule 19b-5 of the Act, a system must comply with three 
criteria to maintain its status as a Pilot Trading System.\10\ One such 
criteria is that, for each security traded in the System, the System 
cannot trade more than one percent of the average daily consolidated 
trading volume of any such security, during at least two of the last 
four consecutive calendar months. Nasdaq represents that Primex has 
exceeded this threshold for many securities. Nasdaq also represents 
that while not all eligible securities have been phased in as of this 
date, Primex has already executed approximately 1.7 million trades 
representing almost 500 million shares since it began operation just 
over four months ago. Therefore, Nasdaq files this proposed rule change 
to continue operating the System until the Commission grants permanent 
approval.
---------------------------------------------------------------------------

    \8\ 17 CFR 240.19b-5(c)(2).
    \9\ 17 CFR 240.19b-4.
    \10\ Pursuant to Rule 19b-5(c)(2) of the Act, to qualify as a 
Pilot Trading System, a system must: (1) Be in operation for less 
than two years; (2) with respect to each security traded on such 
Pilot Trading System, during at least two of the last four 
consecutive calendar months, has traded no more than one percent of 
the average daily trading volume in the United States; and (3) with 
respect to all securities traded on such Pilot Trading System, 
during at least two of the last four consecutive calendar months, 
has traded no more than 20 percent of the average daily trading 
volume of all trading systems operated by the self-regulatory 
organization. 17 CFR 240.19b-5(c)(2).
---------------------------------------------------------------------------

    Generally, Nasdaq states that Primex is a hybrid system that 
combines an extended, electronic auction mechanism with the speed and 
liquidity of Nasdaq's competing market maker environment.\11\ In a 
traditional auction market model, market participants gather in a 
``crowd'' at a physical location to bid for incoming orders. In 
addition, most auction markets employ a single specialist that manages 
trading in a security and supplies liquidity when there is no buying or 
selling interest in the crowd.
---------------------------------------------------------------------------

    \11\ A detailed description of the System is contained in the 
Form PILOT and the companion proposed rule change, as well as the 
rules.
---------------------------------------------------------------------------

    Primex automates many of these elements. By facilitating an 
``electronic crowd,'' not bound by the physical limitations of space or 
the number of persons that can be at any one place at a given time, the 
System can provide the benefits of an auction model on a larger and 
more efficient scale. By further combining this within a competitive, 
multi-dealer structure that has been Nasdaq's hallmark, Nasdaq believes 
it can make available a greater amount of liquidity than would be 
available in a market with only one provider of capital. The result of 
this combination and automation, Nasdaq believes, is a market-based 
solution for providing price improvement opportunities and enhanced 
liquidity.
    The following is a brief overview of how the System typically will 
operate. Additional details on the System and its tools can be found 
within the rules of the System, the Form PILOT and the proposing 
release seeking permanent approval of the System.\12\
---------------------------------------------------------------------------

    \12\ See supra note 7.
---------------------------------------------------------------------------

    A customer sends an order to his or her broker, who, in turn, can 
forward it to the System. The System is voluntary. Once an order is 
submitted, an auction for that order commences. Through a unique 
mechanism, the order is exposed to the System's electronic crowd, which 
can be composed of market makers, proprietary traders, institutions, 
ECNs and even the orders of other customers. The System's electronic 
crowd is open to any NASD member (or their customers, through a 
sponsored arrangement), and thus the universe of participants who may 
have access to these orders is very broad. Using the System's auction 
response tools, crowd participants anonymously bid for the order at 
prices at or within the parameters of the National Best Bid and Offer 
(``NBBO''). The order will be executed if an appropriate match is found 
in the electronic crowd or if the participant submitting the order 
provided an execution guarantee. The types of orders that can be 
submitted and the System's response tools are specified in the above 
rules and are generally described below.
    Primex is available to any NASD member and other entities members 
choose to sponsor. To access the System, a member must be in good 
standing and have executed the necessary agreements with Nasdaq. 
Members granted access to the System are referred to as Primex Auction 
System Participants (``Participants''), and can access the facility for 
their customers or for themselves. Participants in the System are 
classified as either Primex Auction Market Makers (``PAMMs'') or Crowd 
Participants.
    The rights and obligations of each class of Participant are 
specified in the rules. Generally, however, for any security eligible 
for trading in the System, Crowd Participants can: View all orders 
exposed in the System; interact with any order put to auction in the 
System by responding to auctions; submit orders to be put to auction; 
and trade as principal, agent, or riskless principal.
    PAMMs have certain obligations when they participate in the System. 
With respect to any security eligible for trading in the System for 
which a Participant is registered as a PAMM, it must: Maintain a two-
sided quote in Nasdaq (or Nasdaq's InterMarket for CQS securities) with 
respect to any security for which it is registered as a PAMM, and 
otherwise be in compliance with all applicable NASD rules; and submit 
to the System a minimum percentage \13\ of its Mandatory Eligible \14\ 
public customer orders (including customer orders of another broker-
dealer that directs such orders to the PAMM) for those securities in 
which it is registered as a PAMM.
---------------------------------------------------------------------------

    \13\ See NASD Rule 5020.
    \14\ See NASD Rules 5011 and 5020.
---------------------------------------------------------------------------

    PAMMs have the same privileges as Crowd Participants, but because 
they have certain obligations, PAMMs also have additional privileges. 
PAMMs are entitled but not obligated to: Exercise certain ``matching 
rights'' that allow a PAMM to commit capital to its customer orders in 
conjunction with the auction exposure process; provide execution 
guarantees within the System for its own customer orders submitted; and 
use certain types of orders that permit the PAMM to facilitate block 
trades and ``clean crosses.'' PAMMs also are entitled to share in 
transaction revenue paid by other Participants when those other 
Participants execute against a PAMM's customer orders.
    The System accepts unpriced market orders, as well as orders that 
have specified, fixed prices that are marketable or priced between the 
NBBO. Orders can be submitted in any round lot or mixed lot, but odd 
lot orders are not accepted. The System is not an ECN Display 
Alternative under the Order Handling Rules \15\ because it

[[Page 39780]]

does not display limit orders. Fixed price orders are eligible only for 
``immediate or cancel'' treatment, whereas Participants can choose the 
duration for which their market orders will be exposed.
---------------------------------------------------------------------------

    \15\ The SEC's Quote Rule, Rule 11Ac1-1, and Limit Order Display 
Rule, Rule 11Ac1-4, together are commonly referred to as the Order 
Handling Rules. Specifically, the System is not an ECN Display 
Alternative under paragraph (c)(5)(ii) of Rule 11Ac1-1 and paragraph 
(c)(5) of Rule 11Ac1-5.
---------------------------------------------------------------------------

    Participants also have the option to specify that the balance of an 
unexecuted order be returned to them or forwarded to other Nasdaq 
systems for execution. Participants must indicate their preference upon 
submission of an order to the System. A Participant's preference is not 
displayed, exposed or communicated to any other Participant.
    Another feature of the System is that it processes all activity 
among Participants on an anonymous basis until the end of the trading 
day, at which time the counterparties' identities are revealed to each 
other. Nasdaq, however, has the ability to determine the identity of 
the parties at any time.
    In all other aspects, trades executed within the System are 
reported and settled using ACT, just as any other trade executed using 
Nasdaq systems. Trades are reported to the public tape, included in 
ACT's risk management features, and forwarded to DTCC for clearing, if 
necessary. The System itself provides additional risk management 
controls through which Participants and their clearing firms can 
closely monitor and control their exposure specifically with respect to 
System activity, both at an individual subscriber/user level, as well 
as across an entire firm.
(2) Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of sections 15A(b)(6) \16\ and 11A(a)(1) of the Act.\17\ 
Section 15A(b)(6) of the Act \18\ requires the rules of the NASD to be 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principals 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; and not be 
designed to permit unfair discrimination between customers, issuers, 
brokers, or dealers. Section 11A(a)(1) of the Act \19\ sets forth 
findings of Congress that new data processing and communications 
techniques create opportunity for more efficient and effective market 
operations.
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    \16\ 15 U.S.C. 78o-3(b)(6).
    \17\ 15 U.S.C. 78k-1(a)(1).
    \18\ 15 U.S.C. 78o-3(b)(6).
    \19\ 15 U.S.C. 78k-1(a)(1).
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    Nasdaq believes its application of Primex is consistent with the 
NASD's obligations under the Act, as well as the finding of Congress, 
because the System provides members with an additional electronic, 
execution system, which is designed to provide members with flexibility 
in executing orders and the opportunity to obtain price improvement. 
Nasdaq states that the System is a hybrid that combines an extended, 
electronic auction mechanism with the speed and liquidity of Nasdaq's 
competing market maker environment. Nasdaq believes that the System can 
improve on the traditional auction market model by automating many of 
its elements, including the trading crowd, but will not be bound by 
physical limitations of space or the number of persons that can be in 
one physical location at any given time. Nasdaq believes this 
attribute, combined with a multiple market maker structure, provides an 
opportunity for enhanced liquidity.
    Nasdaq states that another attribute of the System is that all 
orders may be exposed to a wider audience and thus have the opportunity 
to obtain price improvement. This provides for order interaction and 
can facilitate best execution. At the same time, however, Nasdaq 
believes the System can continue to provide PAMMs with incentives to 
expose orders and provide liquidity to those orders. To ensure the 
protection of investors, orders will not be executed at prices inferior 
to the NBBO.
    Nasdaq further states that the System also is designed to foster 
cooperation and coordination with persons engaged in regulating, 
clearing, settling, processing information with respect to, and 
facilitating transactions is securities. Trades executed using the 
System will be processed through ACT in the same manner as trades 
executed using other Nasdaq systems. As such, information on these 
trades will be incorporated in Nasdaq's audit trail, ACT's risk 
management function, and forwarded to DTCC for clearance and 
settlement, if necessary. Trades executed using the System also will be 
disseminated on the public tape.

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

    Prior to filing the Form PILOT, Nasdaq published a Notice to 
Members describing the operation of the System.\20\ One letter was 
received in response thereto.\21\
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    \20\ NASD Notice to Members 00-65 (September 2000).
    \21\ See letter from Antonio Cecin, Managing Director, Director 
of Equity Trading, US Bancorp Piper Jaffray, to Eugene Lopez, Senior 
Vice President, Nasdaq, dated January 2, 2001.
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III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The foregoing rule change has become effective upon filing pursuant 
to section 19(b)(3)(A)(iii),\22\ subparagraph (f)(5) of Rule 19b-4,\23\ 
and subparagraph (f)(2) of Rule 19b-5.\24\ The proposal would permit 
Nasdaq to continue operating Primex until the Commission grants 
permanent approval, but not for a period longer than six months. The 
proposal does not modify any rule or the operation of Primex. As such, 
it does not affect the protection of investors or the public interest; 
does not impose any burden on competition; and does not have the effect 
of limiting access to or availability of the system.
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    \22\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \23\ 17 CFR 240.19b-4(f)(5).
    \24\ 17 CFR 240.19b-5(f)(2).
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    At any time within 60 days of the filing of a rule change pursuant 
to section 19(b)(3)(A) of the Act,\25\ 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.\26\
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    \25\ 15 U.S.C. 78s(b)(3)(A).
    \26\ For purposes of calculating the 60-day abrogation date, the 
Commission considers the 60-day period to have commenced on May 28, 
2002, the date Nasdaq filed Amendment No. 1.
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change, as amended, is consistent with the Act. Persons making written 
submissions should file six copies thereof with the Secretary, 
Securities and Exchange Commission, 450 Fifth Street, NW, Washington, 
DC 20549-0609. 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

[[Page 39781]]

communications relating to the proposed rule change between the 
Commission and any person, other than those that may be withheld from 
the public in accordance with the provisions of 5 U.S.C. 552, will be 
available for inspection and copying in the Commission's Public 
Reference Room. Copies of such filings will also be available for 
inspection and copying at the principal office of the Association. All 
submissions should refer to File No. SR-NASD-2002-58 and should be 
submitted by July 1, 2002.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\27\

    \27\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 02-14433 Filed 6-7-02; 8:45 am]
BILLING CODE 8010-01-P