[Federal Register Volume 68, Number 57 (Tuesday, March 25, 2003)]
[Notices]
[Pages 14451-14456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6987]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-47516; File No. SR-NASD-2002-141]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change and Amendment No. 1 Thereto by the National Association of 
Securities Dealers, Inc. Relating to Proposed Amendments to NASD Rules 
4200 and 4350 Regarding Board Independence and Independent Committees

March 17, 2003.
    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 October 9, 2002, the National Association of Securities Dealers, 
Inc. (``NASD''), 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. On March 11, 
2003, Nasdaq submitted Amendment No. 1 to the proposed rule change.\3\ 
The Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See letter from Mary M. Dunbar, Vice President and Deputy 
General Counsel, Nasdaq, to Katherine A. England, Assistant 
Director, Division of Market Regulation (``Division''), Commission, 
dated March 11, 2003 (``Amendment No. 1''). In Amendment No. 1, 
Nasdaq proposed revisions to (1) the definition of ``independent 
director'' and (2) Nasdaq's listing standards with respect to 
provisions governing independent directors and audit committees. 
Amendment No. 1 supersedes and replaces in its entirety the original 
proposed rule change that Nasdaq filed with the Commission on 
October 9, 2002.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    Nasdaq proposes amendments to NASD Rules 4200 and 4350 to modify 
the definition of the term ``independent director.''

[[Page 14452]]

    The text of the proposed rule change is below. Proposed new 
language is italicized; proposed deletions are in brackets.\4\
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    \4\ At Nasdaq's request, a few nonsubstantive changes were made 
to the proposed rule text as filed with the Commission to correct 
formatting errors. Telephone calls between Sara Bloom, Office of 
General Counsel, Nasdaq, and Jennifer Lewis, Attorney, Division of 
Market Regulation (``Division''), Commission, on March 14, 2003 and 
Eleni Constantine, Office of General Counsel, Nasdaq, and Jennifer 
Lewis, Attorney, Division, Commission, on March 17, 2003.
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* * * * *

Rule 4200. Definitions

    (a) For purposes of the Rule 4000 Series, unless the context 
requires otherwise:
    (1)-(13) No change.
    (14) ``Family Member'' means any person who is a relative by blood, 
marriage or adoption or who has the same residence.
    (15) ``Independent director'' means a person other than an officer 
or employee of the company or its subsidiaries or any other individual 
having a relationship, which, in the opinion of the company's board of 
directors, would interfere with the exercise of independent judgment in 
carrying out the responsibilities of a director. The following persons 
shall not be considered independent:
    (A) a director who is, or during the past three years was, employed 
by the [corporation] company or by any parent or subsidiary of the 
company [any of its affiliates for the current year or any of the past 
three years];
    (B) a director who accepts or who has a Family Member who accepts 
any [compensation] payments from the [corporation] company or any [of 
its affiliates] parent or subsidiary of the company in excess of 
$60,000 during the current fiscal year or any of the past three fiscal 
years [previous fiscal year], other than compensation for board 
service, payments arising solely from investments in the company's 
securities, compensation paid to a Family Member who is an employee of 
the company or a parent or subsidiary of the company (but not if such 
person is an executive officer of the company or any parent or 
subsidiary of the company), benefits under a tax-qualified retirement 
plan, or non-discretionary compensation (provided, however, that audit 
committee members are subject to heightened requirements under Rule 
4350(d));
    (C) a director who is a [member of the immediate] [f]Family Member 
of an individual who is, or [has been in any of] during the past three 
years was, employed by the [corporation] company or by any [of its 
affiliates] parent or subsidiary of the company as an executive 
officer[. Immediate family includes a person's spouse, parents, 
children, siblings, mother-in-law, father-in-law, brother-in-law, 
sister-in-law, son-in-law, daughter-in-law, and anyone who resides in 
such person's home];
    (D) a director who is a partner in, or a controlling shareholder or 
an executive officer of, any [for-profit business] organization to 
which the [corporation] company made, or from which the [corporation] 
company received, payments (other than those arising solely from 
investments in the [corporation's] company's securities) that exceed 5% 
of the recipient's [corporation's or business organization's] 
consolidated gross revenues for that year, or $200,000, whichever is 
more, in the current fiscal year or any of the past three fiscal years;
    (E) a director of the listed company who is employed as an 
executive officer of another entity where any of the [company's] 
executive[s] officers of the listed company serve on [that entity's] 
the compensation committee of such other entity, or if such 
relationship existed during the past three years; or
     (F) a director who is or was a partner or employee of the 
company's outside auditor, and worked on the company's audit, during 
the past three years.
    Former (15)-(37) renumbered as (16)-(38).

IM--4200 Definition of Independence--Rule 4200(a)(15)

    It is important for investors to have confidence that individuals 
serving as independent directors do not have a relationship with the 
listed company that would impair their independence. The board has a 
responsibility to make an affirmative determination that no such 
relationships exist through the application of Rule 4200. Rule 4200 
also provides a list of certain relationships that preclude a board 
finding of independence. These objective measures provide transparency 
to investors and companies, facilitate uniform application of the 
rules, and ease administration. Because Nasdaq does not believe that 
ownership of company stock by itself would preclude a board finding of 
independence, it is not included in the aforementioned objective 
factors. The Rule's reference to a ``parent or subsidiary'' is intended 
to cover entities that are consolidated with the issuer's financial 
statements. It should also be noted that there are additional, more 
stringent requirements that apply to audit committees, as specified in 
Rule 4350.

Rule 4350. Qualitative Listing Requirements for Nasdaq National Market 
and Nasdaq Small Cap Market Issuers Except for Limited Partnerships

    (a)-(b) No change.
(c) Independent Directors
    [Each issuer shall maintain a sufficient number of independent 
directors on its board of directors to satisfy the audit committee 
requirement set forth in Rule 4350(d)(2).]
    (1) A majority of the board of directors must be comprised of 
independent directors as defined in Rule 4200.
    (2) Independent directors must have regularly scheduled meetings at 
which only independent directors are present (``executive sessions'').
    (3) Compensation of Officers
    (A) Compensation of the chief executive officer of the company will 
be determined either by:
    (i) a majority of the independent directors meeting in executive 
session, or
    (ii) a compensation committee comprised solely of independent 
directors meeting in executive session.
    (B) Compensation of all other officers, as that term is defined in 
section 16 of the Act and Rule 16a-1 thereunder, will be determined 
either by:
    (i) a majority of the independent directors, or
    (ii) a compensation committee comprised solely of independent 
directors.
    The chief executive officer may be present during deliberations, 
but may not vote.
    (C) Notwithstanding paragraphs (3)(A)(ii) and (3)(B)(ii) above, if 
the compensation committee is comprised of at least three members, one 
director who is not independent as defined in Rule 4200 and is not a 
current officer or employee or a Family Member of such person, may be 
appointed to the compensation committee if the board, under exceptional 
and limited circumstances, determines that such individual's membership 
on the committee is required by the best interests of the company and 
its shareholders, and the board discloses, in the next annual meeting 
proxy statement subsequent to such determination, the nature of the 
relationship and the reasons for the determination. A member appointed 
under this exception may not serve longer than two years.
    (4) Nomination of Directors
    (A) The nomination of company directors will be determined either 
by:
    (i) a majority of the independent directors, or

[[Page 14453]]

    (ii) a nominations committee comprised solely of independent 
directors.
    (B) Notwithstanding paragraph (4)(A)(ii) above, if the nominations 
committee is comprised of at least three members, one director, who is 
not independent as defined in Rule 4200 and is not a current officer or 
employee or a Family Member of such person, may be appointed to the 
nominations committee if the board, under exceptional and limited 
circumstances, determines that such individual's membership on the 
committee is required by the best interests of the company and its 
shareholders, and the board discloses, in the next annual meeting proxy 
statement subsequent to such determination, the nature of the 
relationship and the reasons for the determination. A member appointed 
under this exception may not serve longer than two years.
    (C) Notwithstanding paragraph (4)(A)(ii) above, if the nominations 
committee is comprised of at least three members, and if the exception 
described in paragraph (4)(B) is not relied upon, one director who owns 
20% or more of the company's common stock or voting power outstanding, 
and is not independent as defined in Rule 4200 because that director is 
also an officer, may be appointed to the nominations committee if the 
board determines that such individual's membership on the committee is 
required by the best interests of the company and its shareholders, and 
the board discloses, in the next annual meeting proxy statement 
subsequent to such determination, the nature of the relationship, and 
the reasons for the determination.
    (5) A Controlled Company is exempt from the requirements of this 
subsection (c). A Controlled Company is a company of which more than 
50% of the voting power is held by an individual, a group or another 
company. A Controlled Company relying upon this exemption must disclose 
in its annual meeting proxy statement that it is a Controlled Company 
and the basis for that determination.

(d) Audit Committee

(1) Audit Committee Charter
    Each issuer must certify that it has adopted a formal written audit 
committee charter and that the audit committee has reviewed and 
reassessed the adequacy of the formal written charter on an annual 
basis. The charter must specify [the following]:
    (A)-(B) No change.
    (C) [the outside auditor's ultimate accountability to the board of 
directors and the audit committee, as representatives of shareholders, 
and these shareholder representatives' ultimate authority and 
responsibility to select, evaluate, and, where appropriate, replace the 
outside auditor (or to nominate the outside auditor to be proposed for 
shareholder approval in any proxy statement)] the committee's purpose 
of overseeing the accounting and financial reporting processes of the 
issuer and the audits of the financial statements of the issuer;
    (D) the following specific audit committee responsibilities and 
authority:
    (i) the pre-approval of all audit services and permissible non-
audit services as set forth in section 10A(i) of the Act;
    (ii) the sole authority to appoint, determine funding for and 
oversee the outside auditors as set forth in section 10A(m)(2) of the 
Act;
    (iii) the responsibility to establish procedures for complaints as 
set forth in section 10A(m)(4) of the Act; and
    (iv) the authority to engage and determine funding for independent 
counsel and other advisors as set forth in section 10A(m)(5) of the 
Act.
(2) Audit Committee Composition
    (A) Each issuer must have, and certify that it has and will 
continue to have, an audit committee of at least three members, 
[comprised solely of independent directors] each of whom [is]:
    (i) must: (a) be independent as defined under Rule 4200, (b) meet 
the criteria for independence set forth in section 10A(m)(3) of the 
Act, and (c) not own or control 20% or more of the issuer's voting 
securities (or such lower measurement as may be established by the SEC 
in rulemaking under section 10A(m) of the Act); and
    (ii) must be able to read and understand fundamental financial 
statements, including a company's balance sheet, income statement, and 
cash flow statement [or will become able to do so within a reasonable 
period of time after his or her appointment to the audit committee]. 
Additionally, each issuer must certify that it has, and will continue 
to have, at least one member of the audit committee [that] who has past 
employment experience in finance or accounting, requisite professional 
certification in accounting, or any other comparable experience or 
background which results in the individual's financial sophistication, 
including being or having been a chief executive officer, chief 
financial officer or other senior officer with financial oversight 
responsibilities.
    (B) Notwithstanding paragraph (2)(A)(i), one director who: (i) Is 
not independent as defined in Rule 4200, [and] (ii) meets the criteria 
set forth in section 10A(m)(3) of the Act and the rules thereunder, 
(iii) does not own or control 20% or more of the issuer's voting 
securities (or such lower measurement as may be established by the SEC 
in rulemaking under section 10A(m)(3) of the Act), and (iv) is not a 
current officer or employee or a[n immediate] F[f]amily M[m]ember of 
such [employee] person, may be appointed to the audit committee, if the 
board, under exceptional and limited circumstances, determines that 
membership on the committee by the individual is required by the best 
interests of the corporation and its shareholders, and the board 
discloses, in the next annual proxy statement subsequent to such 
determination, the nature of the relationship and the reasons for that 
determination. A member appointed under this exception may not serve 
longer than two years and may not chair the audit committee.
    [(C) Exception for Small Business Filers--Paragraphs (2)(A) and 
(2)(B) do not apply to issuers that file reports under SEC Regulation 
S-B. Such issuers must establish and maintain an Audit Committee of at 
least two members, a majority of the members of which shall be 
independent directors.]
    (e)-(l) No change.
IM-4350-4 Board Independence and Independent Committees

Independent Directors and Independent Committees--Rule 4350(c)

    Majority Independent Board. Independent directors (as defined in 
Rule 4200(A)(15)) play an important role in assuring investor 
confidence. Through the exercise of independent judgment, they act on 
behalf of investors to maximize shareholder value in the companies they 
oversee and guard against conflicts of interest. Requiring that the 
board be comprised of a majority of independent directors will empower 
such directors to more effectively carry out these responsibilities.
    Executive Sessions of Independent Directors. Regularly scheduled 
executive sessions will encourage and enhance communication among 
independent directors. It is contemplated that executive sessions will 
occur at least twice a year, and perhaps more frequently, in 
conjunction with regularly scheduled board meetings.

[[Page 14454]]

    Independent Director Oversight of Executive Compensation. 
Independent director oversight of executive officer compensation will 
help assure that appropriate incentives are in place, consistent with 
the board's responsibility to maximize shareholder value. The Rule is 
intended to provide flexibility for an issuer to choose an appropriate 
3 board structure and to reduce resource burdens, while ensuring 
independent director control of compensation decisions.
    Independent Director Oversight of Director Nominations. Independent 
director oversight of nominations enhances investor confidence in the 
selection of well-qualified director nominees, as well as independent 
nominees as required by the Rules. This Rule is also intended to 
provide flexibility for a company to choose an appropriate board 
structure and reduce resource burdens, while ensuring that independent 
directors approve all nominations.
    This Rule will not apply in cases where the right to nominate a 
director legally belongs to a third party. For example, investors may 
negotiate the right to appoint directors in connection with an 
investment in the company, holders of preferred stock may be permitted 
to nominate or appoint directors upon certain defaults, or the company 
may be a party to a shareholder's agreement that allocates the right to 
nominate some directors. Because the right to nominate directors in 
these cases does not reside with the company, independent director 
approval would not be required.
    Controlled Company Exception. This exception recognizes that 
majority shareholders, including parent companies, have the right to 
select directors and control certain key decisions, such as executive 
officer compensation, by virtue of their ownership rights. In order for 
a group to exist for purposes of this Rule, the shareholders must have 
publicly filed a notice that they are acting as a group (e.g., a 
Schedule 13D). It should be emphasized that this controlled company 
exception does not extend to the audit committee requirements under 
Rule 4350.

Audit Committees--Rule 4350(d)

    Audit Committee Charter. A company's audit committee is required to 
adopt a formal written charter that specifies the scope of its 
responsibilities and the means by which it carries out those 
responsibilities; the outside auditor's accountability to the audit 
committee; and the audit committee's responsibility to ensure the 
independence of the outside auditor. Consistent with this, the charter 
must specify all audit committee responsibilities set forth in section 
10A of the Act. The rights and responsibilities as articulated in the 
audit committee charter empower the audit committee and enhance its 
effectiveness in carrying out its responsibilities. While the audit 
committee is empowered to retain outside consultants, it is not 
expected to do so routinely. Rather, it is expected that such authority 
would be exercised in response to specific circumstances giving rise to 
an audit committee determination that such action is in the best 
interest of the company and its shareholders.
    Audit Committee Composition. Audit committees are required to have 
a minimum of three members and be comprised only of independent 
directors. In addition to satisfying the independent director 
requirements under Rule 4200, audit committee members must satisfy the 
heightened independence standards provided in section 10A(m)(3) of the 
Act: they must not accept any consulting, advisory, or other 
compensatory fee from the company other than for board service, and 
they must not be an affiliated person of the company. For purposes of 
determining whether a person is an affiliate solely by virtue of stock 
ownership, an audit committee member will be considered an affiliated 
person of the issuer if such member owns or controls, directly or 
indirectly, 20% or more of the company's voting stock, or such other 
lower threshold as the SEC may establish. Nasdaq would also consider 
the employee of an entity that owns or controls such securities as an 
affiliated person.
    All audit committee members must be able to read and understand 
fundamental financial statements, including a company's balance sheet, 
income statement, and cash flow statement at the time they join the 
board. In addition, at least one audit committee member must have past 
employment experience in finance or accounting, requisite professional 
certification in accounting, or any other comparable experience or 
background which results in the individual's financial sophistication, 
including being or having been a chief executive officer, chief 
financial officer or other senior officer with financial oversight 
responsibilities.
    It should be noted that, under exceptional and limited 
circumstances, one director who is not considered independent under 
Rule 4200, but meets the independence requirements of section 10A(m)(3) 
of the Act, may serve on the audit committee, provided that the board 
determines it to be in the best interests of the company and its 
shareholders, and the board discloses the reasons for the determination 
in the company's next annual proxy statement.
* * * * * *

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

    In its filing with the Commission, Nasdaq included statements 
concerning the purpose of, and basis for, the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. Nasdaq has prepared summaries, set forth in Sections A, 
B, and C below, of the most significant aspects of such statements.

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

1. Purpose
    Nasdaq is proposing a comprehensive package of corporate governance 
reforms relating to NASD Rules 4200 and 4350, in order to provide 
greater transparency as to certain relationships that would preclude a 
board of directors finding that an individual can serve as an 
independent director and to increase the role of independent directors 
on board committees, in order to enhance investor confidence in the 
companies that list on Nasdaq.

The Definition of Independence

    Nasdaq believes that it is important for investors to have 
confidence that individuals serving as independent directors do not 
have a relationship with the issuer that would impair their 
independence. Proposed interpretive material to NASD Rule 4200 states 
that the board has a responsibility to make an affirmative 
determination that no such relationships exist through the application 
of this rule. The rule also would specify specific relationships that 
would preclude a board finding of independence. The proposed rule 
change would expand and clarify this list of relationships. Nasdaq 
believes that these objectively measured relationships would provide 
transparency to investors and companies, facilitate uniform application 
of the rules, and ease administration. The rule's reference to parent 
or subsidiary is intended to cover

[[Page 14455]]

entities that are consolidated with the issuer's financial statements.
    It should also be noted that additional, more stringent 
requirements for audit committees would be provided in NASD Rule 4350.

Independent Board Committees

    The proposed rule would require a majority of independent directors 
on the issuer's board. Nasdaq believes that independent directors play 
an important role in assuring investor confidence. Through the exercise 
of independent judgment, they act on behalf of investors to maximize 
shareholder value in the companies they oversee, and guard against 
conflicts of interest. Requiring that the board be comprised of a 
majority of independent directors would empower such directors to more 
effectively carry out these responsibilities.
    The proposed rule also would require regularly convened executive 
sessions of the independent directors. Nasdaq believes that regularly 
scheduled executive sessions would encourage and enhance communication 
among independent directors. Nasdaq contemplates that executive 
sessions would occur at least twice a year, and perhaps more 
frequently, in conjunction with regularly scheduled board meetings.
    Independent director approval of executive officer compensation 
would also be required. This oversight would help assure that 
appropriate incentives are in place, consistent with the board's 
responsibility to maximize shareholder value. The proposed rule is 
intended to provide flexibility for an issuer to choose an appropriate 
board structure and to reduce resource burdens, while ensuring 
independent director control of compensation decisions.
    Independent director approval would also be required for director 
nominations. Independent director oversight of nominations enhances 
investor confidence in the selection of well-qualified director 
nominees, as well as independent nominees as required by the rules. 
This rule is also intended to provide flexibility for an issuer to 
choose an appropriate board structure and reduce resource burdens, 
while ensuring that independent directors approve all nominations.
    This rule would not apply in cases where the right to nominate a 
director legally belongs to a third party. For example, investors may 
negotiate the right to appoint directors in connection with an 
investment in the company, holders of preferred stock may be permitted 
to nominate or appoint directors upon certain defaults, or the issuer 
may be a party to a shareholder's agreement that allocates the right to 
nominate some directors. Because the right to nominate directors in 
these cases does not reside with the Company, independent director 
approval would not be required.
    A Controlled Company would be exempt from the requirements of 
proposed NASD Rule 4350(c). A Controlled Company is defined in proposed 
NASD Rule 4350(c) as a company of which more than 50% of the voting 
power is held by an individual, a group or another company. A 
Controlled Company relying upon this exemption would be required to 
disclose in its annual meeting proxy statement that it is a Controlled 
Company and the basis for that determination. This exception recognizes 
that majority shareholders, including parent companies, have the right 
to select directors and control certain key decisions, such as 
executive officer compensation, by virtue of their ownership rights. In 
order for a group to exist for purposes of this rule, the shareholders 
would be required to publicly file a notice that they are acting as a 
group (e.g., a Schedule 13D). Nasdaq emphasizes that this Controlled 
Company exemption would not extend to the audit committee requirements 
under Rule 4350.

Audit Committee Requirements

    The proposed rule would expand the items that must be specified in 
the charter of the issuer's audit committee. In particular, the charter 
would be required to specify all audit committee responsibilities 
required under the Act. The rights and responsibilities as articulated 
in the audit committee charter empower the audit committee and enhance 
its effectiveness in carrying out its responsibilities. Proposed 
interpretive material to NASD Rule 4350 states that while the audit 
committee would be empowered to retain outside consultants, it would 
not be expected to do so routinely. Rather, it would be expected that 
such authority would be exercised in response to specific circumstances 
giving rise to an audit committee determination that such action was in 
the best interest of the company and its shareholders.
    The proposal also would expand and tighten audit committee 
composition requirements. In addition to satisfying the independent 
director requirements under NASD Rule 4200, the proposal would require 
audit committee members to satisfy the heightened independence 
standards provided in section 10A(m)(3) of the Act, which provides that 
an audit committee member may not accept any consulting, advisory, or 
other compensatory fee from the issuer other than for board service, 
and may not be an affiliated person of the issuer. For purposes of 
determining whether a person would be an affiliate solely by virtue of 
stock ownership, proposed revisions to NASD Rule 4350 provide that an 
audit committee member would be considered an affiliated person of the 
issuer if such member owns or controls, directly or indirectly, 20% or 
more of the issuer's voting stock, or such other lower threshold as the 
Commission may establish.
    The proposal would also tighten the current requirement that all 
audit committee members must be able to read and understand fundamental 
financial statements, including a company's balance sheet, income 
statement, and cash flow statement within a reasonable time of joining 
the board, by providing that they must meet these qualifications at the 
time they join the board. Finally, the proposal would remove the 
exception applicable to Small Business filers in order to further 
strengthen the rule.

Timing for Effectiveness of Proposal

    Nasdaq proposes to make the proposed rule change effective as 
follows: Requirements that may call for an adjustment to the 
composition of the company's board or committees (``board composition 
requirements'') would be required to be implemented by the company's 
next annual meeting occurring after January 1, 2004. These include: 
NASD Rule 4200(a)(15), relating to the definition of independence; NASD 
Rule 4350(c)(1), requiring a majority of independent board members; 
NASD Rule 4350(c)(3), relating to independent director approval of 
executive compensation; NASD Rule 4350(c)(4), relating to independent 
approval of director nominations; and NASD Rule 4350(d)(2), relating to 
audit committee composition. This would allow companies to make 
necessary adjustments in the course of their regular annual meeting 
schedule. All other independence-related corporate governance 
requirements, including NASD Rule 4350(c)(2), relating to executive 
sessions and NASD Rule 4350(d)(1), relating to audit committee 
charters, would be required to be implemented six months after 
Commission approval.
    Following Commission approval of the proposed rule change, newly 
listed companies would be afforded two years to comply with all board 
composition requirements and also would be

[[Page 14456]]

afforded any remaining balance of the six month grace period for 
compliance with all other requirements. Companies transferring from 
other markets with substantially similar requirements would be afforded 
the balance of any grace period afforded by the other market.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of section 15A of the Act,\5\ in general, and with 
section 15A(b)(6) of the Act,\6\ in particular, in that the proposed 
rules are designed to prevent fraudulent and manipulative acts and 
practices, to promote just and equitable principles of trade, to remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system, and, in general, to protect investors and the 
public interest.
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    \5\ 15 U.S.C. 78o-3.
    \6\ 15 U.S.C. 78o-3(b)(6).
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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.

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

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    A. By order approve such proposed rule change, or
    B. Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. 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 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 filing will also be 
available for inspection and copying at the principal office of the 
NASD. All submissions should refer to File No. SR-NASD-2002-141 and 
should be submitted by April 15, 2003.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\7\
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    \7\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland.
Deputy Secretary.
[FR Doc. 03-6987 Filed 3-24-03; 8:45 am]
BILLING CODE 8010-01-P