[Federal Register Volume 71, Number 115 (Thursday, June 15, 2006)]
[Notices]
[Pages 34656-34658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9349]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53964; File No. SR-NASDAQ-2006-005]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing of Proposed Rule Change and Amendment Nos. 1 and 2 
Thereto To Modify Nasdaq's Delisting Procedures To Conform to Recent 
Amendments To Commission Rules Regarding Removal From Listing and 
Withdrawal From Registration

June 8, 2006.
    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 4, 2006, The NASDAQ Stock Market LLC (``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 May 5, 2006, Nasdaq filed Amendment 
No. 1 to the proposal.\3\ On May 17, 2006, Nasdaq filed Amendment No. 2 
to the proposal.\4\ 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\ Amendment No. 1 replaced the original proposed rule change 
in its entirety.
    \4\ In Amendment No. 2, Nasdaq amended the implementation date 
of the proposed rule change to the later of Commission approval or 
the date Nasdaq begins to operate as a national securities exchange.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    Nasdaq proposes to modify Nasdaq's delisting procedures to comply 
with Rule 12d2-2 under the Act,\5\ which became effective on April 24, 
2006.
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    \5\ 17 CFR 240.12d2-2.
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    Nasdaq would implement the proposed rule change upon the later of 
its approval or the date Nasdaq begins to operate as a national 
securities exchange.
    The text of the proposed rule change is below. Proposed new 
language is in italics; proposed deletions are in brackets.\6\
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    \6\ Changes are marked to the rule text that appears in the 
electronic manual of The NASDAQ Stock Market, LLC found at http://www.nasdaqtrader.com. These rules will become effective when Nasdaq 
fulfills certain conditions and commences operations as a national 
securities exchange as set forth in Securities Exchange Act Release 
No. 53128 (January 13, 2006), 71 FR 3550 (January 23, 2006).
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Rules of The NASDAQ Stock Market LLC

* * * * *

[4480.] 4380. Termination Procedure

    (a) Failure to maintain compliance with the applicable provisions 
of [Rules 4350, 4450, or 4360] the Rule 4300, 4400 and 4500 Series will 
result in the termination of an issue's listing unless an exception is 
granted as provided in the Rule 4800 Series. Termination shall become 
effective in accordance with the procedures set forth in the Rule 4800 
Series, including IM-4800.
    (b)
    (1) An issuer may voluntarily terminate its listing upon [written 
notice to Nasdaq and application to the Commission.] compliance with 
all requirements of Rule 12d2-2(c) under the Exchange Act. In part, 
Rule 12d2-2(c) requires that the issuer may delist by filing an 
application on Form 25 with the Commission, provided that the issuer: 
(i) Complies with all applicable laws in effect in the state in which 
it is incorporated and with the applicable Nasdaq Rules; (ii) provides 
notice to Nasdaq no fewer than 10 days before the issuer files the Form 
25 with the Commission, including a statement of the material facts 
relating to the reasons for delisting; and (iii) contemporaneous with 
providing notice to Nasdaq, publishes notice of its intent to delist, 
along with its reasons therefore, via a press release and on its web 
site, if it has one. Any notice provided on the issuers web site 
pursuant to Rule 12d2-2(c) must remain available until the delisting 
has become effective. The issuer must also provide a copy of the Form 
25 to Nasdaq simultaneously with its filing with the Commission. Nasdaq 
will provide notice on its web site of the issuer's intent to delist as 
required by Rule 12d2-2(c)(3).
    (2) An issuer that seeks to voluntarily delist a class of 
securities pursuant to Rule 4380(b)(1) that has received notice from 
Nasdaq, pursuant to the Rule 4800 Series or otherwise, that it fails to 
comply with one or more requirements for continued listing, or that is 
aware that it is below such continued listing requirements 
notwithstanding that it has not received such notice from

[[Page 34657]]

Nasdaq, must disclose this fact (including the specific continued 
listing requirements that it is below) in: (i) its statement of all 
material facts relating to the reasons for withdrawal from listing 
provided to Nasdaq along with written notice of its determination to 
withdraw from listing required by Rule 12d2-2(c)(2)(ii) under the 
Exchange Act; and (ii) its press release and web site notice required 
by Rule 12d2-2(c)(2)(iii) under the Exchange Act.
* * * * *

IM-4800. Removal from Listing.

    Rules 4804(e), 4806(e), 4807(f) and 4809(c) provide that Nasdaq 
will delist an issuer in certain circumstances, following Nasdaq's 
determination that the issuer no longer meets the requirements for 
continued listing and after the issuer has received notice of that 
determination and an opportunity to appeal the determination pursuant 
to this Rule 4800 Series. This interpretive material describes the 
steps Nasdaq will follow to effect such a delisting. Consistent with 
Exchange Act Rule 12d2-2, to effect a delisting, Nasdaq will provide 
public notice of its final determination to remove a security from 
listing by issuing a press release and posting notice on its web site. 
This public notice will be disseminated no fewer than 10 days before 
the delisting becomes effective and will remain posted until the 
delisting is effective. Following such public notification, Nasdaq will 
file an application on Form 25 with the Commission to delist the 
security, and will promptly provide a copy of that Form 25 to the 
issuer. The Form 25, and the delisting of the security, will become 
effective 10 days after it is filed pursuant to Exchange Act Rule 12d2-
2(d)(1), unless the Commission postpones such delisting pursuant to 
Rule 12d2-2(d)(3).
* * * * *

4804. Written Notice of Staff Determination

    (a)-(d) No change.
    (e) If an issuer receives a Staff Determination (other than a Staff 
Determination that serves as a public reprimand letter as described in 
Rule 4801(k)(2)) and does not request a hearing within the period 
specified in Rule 4805, the securities of the issuer will be suspended 
and Nasdaq will follow the procedures described in IM-4800 and submit 
an application on Form 25 to the Securities and Exchange Commission to 
strike the security from listing. [A copy of such application will be 
furnished to the issuer in accordance with Section 12 of the Act and 
the rules thereunder.]

4805. Request for Hearing

    No change.

4806. The Listing Qualifications Panel

    (a)-(d) No change.
    (e) If the Panel determines to delist the issuer and the issuer 
does not timely request review by the Listing Council and the Listing 
Council does not call the matter for review or withdraws its call for 
review, Nasdaq will follow the procedures described in IM-4800 and 
submit an application on Form 25 to the Securities and Exchange 
Commission to strike the security from listing. [A copy of such 
application will be furnished to the issuer in accordance with Section 
12 of the Act and the rules thereunder.]

4807. Review by the Nasdaq Listing and Hearing Review Council

    (a)-(e) No change.
    (f) If the Listing Council determines to delist the issuer and the 
Nasdaq Board does not call the matter for review or withdraws its call 
for review, Nasdaq will follow the procedures described in IM-4800 and 
submit an application on Form 25 to the Securities and Exchange 
Commission to strike the security from listing. [A copy of such 
application will be furnished to the issuer in accordance with Section 
12 of the Act and the rules thereunder.]

4808. Reconsideration by the Listing Qualifications Panel and the 
Listing and Hearing Review Council

    No change.

4809. Discretionary Review by Nasdaq Board

    (a) A Listing Council Decision may be called for review by the 
Nasdaq Board solely upon the request of one or more Director not later 
than the next Nasdaq Board meeting that is 15 calendar days or more 
following the date of the Listing Council Decision. Such review shall 
be undertaken solely at the discretion of the Nasdaq Board and will not 
operate as a stay of the Listing Council Decision, unless the call for 
review specifies to the contrary. At the sole discretion of the Nasdaq 
Board, the call for review of a Listing Council Decision may be 
withdrawn at any time prior to the issuance of a decision.
    (b) No change.
    (c) If the Nasdaq Board conducts a discretionary review, the issuer 
shall be provided with a written decision that meets the requirements 
of Rule 4811. The Nasdaq Board may affirm, modify or reverse the 
Listing Council Decision and may remand the matter to the Listing 
Council, Listing Qualifications Panel, or staff of the Listing 
Department with appropriate instructions. [This] The decision of the 
Nasdaq Board will take immediate effect, unless it specifies to the 
contrary, and [decision] represents the final action of Nasdaq [and 
will take immediate effect unless it specifies to the contrary]. If the 
Nasdaq Board determines to delist the issuer, the securities of the 
issuer will be immediately suspended, unless the Nasdaq Board specifies 
to the contrary, and Nasdaq will follow the procedures described in IM-
4800 and submit an application on Form 25 to the Commission to strike 
the security from listing. [A copy of such application will be 
furnished to the issuer in accordance with Section 12 of the Act and 
the rules thereunder.]
    [(d) If the Nasdaq Board declines to conduct a discretionary review 
or withdraws its call for review, the issuer shall be promptly provided 
with written notice that the Listing Council Decision represents the 
final action of Nasdaq.]
* * * * *

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
    On July 14, 2005, the Commission adopted amendments to its rules 
governing delisting from a national securities exchange.\7\ These 
amendments, which became effective on April 24, 2006, modified the 
procedures surrounding the way an issuer voluntarily delists from a 
national securities exchange and the way that a national securities 
exchange delists an issuer for cause. As a result, Nasdaq is proposing 
certain changes to its rules to incorporate the requirements of 
Commission Rule 12d2-2.\8\ Specifically, Nasdaq proposes to require 
public notice of Nasdaq's final determination to delist an issuer, no 
fewer than 10 days before the delisting becomes effective, via a press 
release and posting

[[Page 34658]]

on Nasdaq's Web site.\9\ This notice will remain posted on the Web site 
until the delisting is effective. Nasdaq also proposes to clarify that 
it will follow these same procedures upon the withdrawal of a call for 
review by the Nasdaq Listing and Hearing Review Council or the Nasdaq 
Board, as is permitted by existing Nasdaq Rules 4807(b) and 4809(d).
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    \7\ See Securities Exchange Act Release No. 52029 (July 14, 
2005), 70 FR 42456 (July 22, 2005).
    \8\ 17 CFR 240.12d2-2.
    \9\ See 17 CFR 240.12d2-2(b)(1). Nasdaq notes that Nasdaq Rule 
4804 already requires notice to the issuer of the decision to delist 
the issuer's securities, and Nasdaq Rules 4805 and 4807 provide an 
opportunity for the issuer to appeal that decision.
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    In addition, Nasdaq proposes to relocate the existing requirements 
concerning a voluntary delisting and adopt a new requirement that an 
issuer must comply with the provisions of Commission Rule 12d2-2(c) 
\10\ when it wishes to voluntarily delist and also notify Nasdaq at the 
same time that it files a Form 25 with the Commission to voluntarily 
delist. This requirement will facilitate Nasdaq's compliance with its 
obligation to provide notice on its Web site that the issuer has 
determined to withdraw its securities from listing and/or registration 
on Nasdaq.\11\ Nasdaq also proposes to require an issuer that has 
received notice from Nasdaq that it fails to comply with one or more 
requirements for continued listing, or that otherwise is aware that it 
is below such continued listing requirements, to disclose this fact in 
certain notices required by Commission Rule 12d2-2(c).
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    \10\ 17 CFR 240.12d2-2(c)
    \11\ 17 CFR 240.12d2-2(c)(3).
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    Finally, Nasdaq proposes to remove Nasdaq Rule 4809(d) because it 
would be redundant.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
Section 6 of the Act,\12\ in general and with Sections 6(b)(5) of the 
Act,\13\ in particular, because it is designed to protect investors and 
the public interest by following Rule 12d2-2 under the Exchange Act and 
provide a fair procedure for the prohibition or limitation of listing 
by Nasdaq.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    Nasdaq does not believe that the proposed rule change will result 
in any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.

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. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or ( Send an e-mail to [email protected]. Please include File Number SR-NASDAQ-2006-005 on the 
subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NASDAQ-2006-005. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for inspection 
and copying in the Commission's Public Reference Room. Copies of such 
filing also will be available for inspection and copying at the 
principal office of the Exchange. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-NASDAQ-2006-005 and should be submitted on or before 
July 6, 2006.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\14\
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    \14\17 CFR 200.30-3(a)(12).
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J. Lynn Taylor,
Assistant Secretary.
 [FR Doc. E6-9349 Filed 6-14-06; 8:45 am]
BILLING CODE 8010-01-P