[Federal Register: April 6, 2009 (Volume 74, Number 64)]
[Notices]
[Page 15552-15560]
[DOCID:fr06ap09-138]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59663; File No. SR-NASDAQ-2009-018]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Relating to Revisions and Restructuring of the NASDAQ Listing Rules

March 31, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 12, 2009, 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. Nasdaq included in its proposed rule change Exhibit 5A, which
is the text of the proposed rule change; Exhibit 5B, which is a copy of
the current 4000 Series rules as they currently exist which are being
proposed for amendment in Exhibit 5A; and Exhibit 5C, which is a table
that shows the location of the old rules to where they now reside in
the new rule text.\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\ Exhibits 5A, 5B, and 5C are available on the Commission's
Web site (http://www.sec.gov/).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    Nasdaq proposes a rule change to reorganize the rules relating to
the qualification, listing, and delisting of companies listed, or
applying to list on Nasdaq (``Companies''). Nasdaq is proposing to
house these rules, which are currently found in the 4000 Series of the
Marketplace Rules, into a clearer and more intuitive structure under a
new 5000 Series. In addition, Nasdaq has taken this opportunity to
eliminate redundancies and clarify the language used for the rule text.
The text of the proposed rule change is available from Nasdaq's Web
site at http://nasdaq.cchwallstreet.com, at Nasdaq's principal office,
and at the Commission's Public Reference Room. The new rules shall
become operative on April 13, 2009.

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. The
text of these statements may be examined at the places specified in
Item IV below, and is set forth in Sections A, B, and C below.

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

1. Purpose
    Nasdaq proposes to reorganize the rules applicable to the
qualification, listing, and delisting of Companies on Nasdaq (the
``Listing Rules''), which are found in the Rule 4000 Series of the
Nasdaq manual (the ``4000 Series''), in an effort to make the rules
more transparent and clear.\4\ As these rules have evolved over the
last thirty years, they have become very complex and can be difficult
to navigate, especially for those who are unfamiliar with their
structure. Nasdaq believes that there are opportunities to reduce
redundancies and greatly improve the overall organization of the
Listing Rules. As such, Nasdaq proposes to remove the listing rules
from the 4000 Series and restate them in a simpler, more transparent
and reader-friendly format in the proposed Rule 5000 Series (the ``5000
Series''), which is presently unused.
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    \4\ The Listing Rules are divided into different sections within
the 4000 Series, with each section numbered as a 100th of 4000
(e.g., 4100 ``General'', 4200 ``Definitions,'' etc.). Nasdaq also
refers to these sections as Series when making reference to all
rules that fall under the section. For example, Rule 4310 would be
said to reside in the 4300 Series. Nasdaq uses the same convention
for referring to sections of the proposed 5000 Series.
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    Nasdaq represents that it is not making any substantive changes to
the Listing Rules in this proposal. Rather, as described in greater
detail below, Nasdaq proposes to: (1) Reorganize and recast much of the
old 4000 Series into a more logical structure; (2) apply plain English
principles where needed; (3) add descriptive titles and introductory
language; (4) define terms for consistency; (5) delete obsolete or
incongruent rules; and (6) add or amend rule text where appropriate to
remove ambiguity, to clarify existing practices, and to resolve ongoing
questions from the public. To assist with understanding the changes
made to the Listing Rules, Nasdaq created a table that maps the
location of every existing Listing Rule in the 4000 Series to its place
in the proposed new 5000 Series. The table provides both the old rule
number and rule text, together with the revised rule text and new rule
citation to the rule's location in the proposed 5000 Series. In
addition, the table provides a brief description of the changes made to
the old rule. Nasdaq also notes in the table rules that have been left
in the 4000 Series,\5\ rules that have been deleted altogether, and any
newly-created rules added to the proposed 5000 Series (such as a new
defined term). Nasdaq believes that, when the table is read in
conjunction with this filing, readers will have a clear understanding
of the changes made to the 4000 Series.
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    \5\ Nasdaq determined to leave certain rules that do not relate
to the listing of Company securities in the 4000 Series.
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Organization
    The current 4000 Series contains the initial and continued listing
standards for all three Nasdaq market tiers: The Nasdaq Global Select
Market, The Nasdaq Global Market, and The Nasdaq Capital Market. In
addition to listing standards, the 4000 Series also contains rules
relating to trading of, and market making in, Nasdaq securities, as
found in the 4100, 4600 and 4700 Series. The rules relating to the
listing of securities are found in the 4200, 4300, 4400, 4500, and 4800
Series. Specifically, the 4200 Series sets forth general definitions;
the 4300 Series sets forth qualitative listing standards for all Nasdaq
market tiers, as well as initial and continued listing requirements for
the Capital Market; the 4400 Series contains the initial listing
requirements for the Global Select Market and Global Market, and the
continued listing requirements for the Global Market, including
requirements for listing other securities, such as Index Warrants and
SEEDS; the 4500 Series contains all the fees required to be paid for
listing on Nasdaq; and finally, the 4800 Series contains the
requirements and procedures regarding Nasdaq's appellate process for a
Company denied initial or continued listing.
    Each of Nasdaq's three market tiers has its own specific listing
standards that are progressively more stringent than the tier below.
Today, the listing rules are all derived from the rules applicable to
the Capital Market, so readers must have a working knowledge of the
Capital Market rules to understand the listing requirements of the
other tiers. The need to reference back to the Capital Market rules
when reading the Global Market or Global Select Market rules is often
confusing, and is made particularly difficult given that the rules
applicable to the Capital Market and the other tiers are located far
from each other in the current rules.
    Nasdaq proposes to organize the new Listing Rules by placing all
quantitative tier-specific initial and continued listing standards
within individual rule sections. Thus, the requirements for the Nasdaq
Global Select Market will be contained in the proposed 5300 Series, the
requirements for the Nasdaq Global Market will be contained in the
proposed 5400 Series, and the requirements for the Nasdaq Capital
Market will be contained in the proposed 5500 Series. Nasdaq is also
proposing to create a new 5000 Series that contains general definitions
applicable to Companies, a new 5100 Series that contains a description
of Nasdaq's discretionary authority, and a new 5200 Series that
contains qualitative requirements relating to all Companies seeking to
list or already listed on Nasdaq. Nasdaq is proposing to create a new
5600 Series that contains a stand-alone rule set dedicated to the

corporate governance requirements for all Nasdaq-listed Companies.
Last, Nasdaq is proposing a new 5700 Series that contains the
requirements for listing other securities, a new 5800 Series that
contains the requirements and processes relating to a Company that
fails to meet a listing standard, and a new 5900 Series that contains
the fees required to be paid for listing on Nasdaq.
    Within the proposed 5300, 5400 and 5500 Series, which, as noted,
are each dedicated to a particular market, Nasdaq has organized all
applicable quantitative initial and continued listing standards. Each
of these three Series uses a numbering convention whereby the rules
applicable to initial listing range from 01 to 49 and the continued
listing rule numbers range from 50 to 99. For example, all initial
listing rules applicable to the Nasdaq Global Market are housed in
Rules 5405 through 5415, while the Global Market continued listing
rules are housed in Rules 5450 through 5460. Nasdaq believes that both
new readers and those familiar with the current rule structure will
find the information they seek much more quickly under the new rule
structure.
    Nasdaq has also divided the quantitative listing standards in the
old rules into two subcategories in the new rules: listing requirements
and listing standards. Under the new rules, listing requirements are
quantitative metrics, all of which a company must meet for initial or
continued listing on a particular tier. Listing standards consist of
bundles of quantitative metrics; however, unlike listing requirements,
a company must meet at least one listing standard to become listed or
to continue listing. For example, the three Entry Standards found in
current Rule 4420(a)-(c) contain certain repetitive quantitative
requirements relating to bid price, publicly held shares, and round lot
shareholders. Nasdaq took these common quantitative metrics and placed
them in new Rule 5405(a) as initial listing requirements. For each
bundle of quantitative requirements that remained under each old entry
standard, Nasdaq created individual listing standards. It should be
noted that, under old Entry Standard 3 found in Rule 4420(c), Nasdaq
was able to create two new listing standards in the proposed new 5000
Series, Rules 5405(b)(3) and (4).\6\ Under the old rule, Entry Standard
3 contained an alternative quantitative listing requirement of either a
market value of listed securities of $75 million or total assets and
total revenue of $75 million each.\7\ Nasdaq believes that the two
metrics are better understood as separate, stand-alone listing
standards. The remaining Entry Standard 3 quantitative metrics are
either captured under the new listing requirements or duplicated in
each of the newly-created listing standards. Like all changes proposed
by Nasdaq in this filing, this new structure is not a substantive
change and in no way changes the application of the listing standards
under the existing rules.
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    \6\ The new listing standards are titled ``Market Value
Standard'' and ``Total Assets/Total Revenue Standard.''
    \7\ Rule 4420(c)(6) requires that ``The issuer has: (A) A market
value of listed securities of $75 million (currently traded issuers
must meet this requirement and the bid price requirement under Rule
4420(c)(3) for 90 consecutive trading days prior to applying for
listing); or (B) total assets and total revenue of $75 million each
for the most recently completed fiscal year or two of the last three
most recently completed fiscal years.''
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    As noted, Nasdaq has created a stand-alone section in the proposed
5000 Series for rules that apply to all tiers of securities,\8\ which
includes an overview of the application process,\9\ prerequisites for
applying to list,\10\ and other obligations and requirements for
listing.\11\ In addition, Nasdaq has created a stand-alone section for
listing standards applicable to ``other securities,'' which includes
listing requirements for Exchange Traded Funds, Index-Linked
Securities, Selected Equity-linked Debt Securities, Trust Issued
Receipts, and Index Warrants, as well as generic standards.\12\
Nasdaq's corporate governance standards are also contained in a single,
stand-alone section.\13\
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    \8\ 5200 Series.
    \9\ Rule 5205.
    \10\ Rule 5210.
    \11\ Rules 5215-5290.
    \12\ 5700 Series.
    \13\ 5600 Series.
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    Also included in the proposed 5000 Series are the rules relating to
fees currently found in the 4500 Series. Nasdaq proposes moving the
4500 Series to the new 5900 Series with only minor non-substantive
changes that do not affect the fees charged by Nasdaq. Nasdaq proposes,
however, moving Rule 4550, which relates to written interpretations of
Nasdaq rules, to the proposed 5600 Series. Nasdaq believes that it is
more appropriate to move Rule 4550 to the proposed 5600 Series, which
relates to corporate governance requirements, since the vast majority
of interpretations are requested for corporate governance rules. Nasdaq
has, however, provided a cross-reference to proposed new Rule 5600,
which houses Rule 4550, in the introductory paragraph to the proposed
5900 Series.
    Nasdaq has sought to clarify the process that applies to companies
that fail to meet Nasdaq's listing standards, which is currently found
in the 4800 Series. Although the 4800 Series rules are roughly
organized chronologically, progressing from the initial identification
of a deficiency through the Nasdaq hearings and appeals processes,
Nasdaq believes that the individual sections could be reorganized into
a more intuitive structure. With respect to the initial identification
of deficiencies, Nasdaq has attempted to make clear both what steps
Nasdaq will take with respect to particular deficiencies, and what
obligations and options deficient companies may have. Nasdaq has also
reorganized the rule text relating to the hearings and appellate
processes, so that in each section the reader will find all information
related to the process for each level of review.
    Nasdaq also identified instances of unnecessary duplication of rule
text found in individual Series of the current rules as well. For
example, Rules 4310 and 4320 set forth certain listing requirements
applicable to domestic, Canadian, non-Canadian foreign securities, and
American Depository Receipts. Rule 4310 sets forth the listing
requirements for domestic and Canadian securities, whereas Rule 4320
sets forth the listing requirements for non-Canadian foreign securities
and American Depository Receipts. Although stand alone rules, there is
much duplication of rule text between the two rules. Accordingly,
Nasdaq is proposing to combine these rules and any other such
duplicative rule text, where possible, throughout the proposed 5000
Series. In combining these two rules, Nasdaq has retained the domestic
and Canadian continued listing market maker requirement that allows one
market maker entering a stabilizing bid to count toward the total
number of market makers required by the rules. Nasdaq notes that the
proposed new Capital Market continued listing rules makes it permissive
for non-Canadian foreign securities to count a market maker entering a
stabilizing bid toward the required number of market makers, which was
not explicitly stated in the old rules.
    Nasdaq determined to leave certain rules that do not relate to the
listing of Company securities in the 4000 Series. For example, Rules
4100 through 4120 relate to the trading of listed Company securities on
the market. Nasdaq believes these rules are more appropriately left in
a stand-alone section, apart from the proposed 5000 Series, which
addresses the listing and

delisting of Company securities. Likewise, Nasdaq determined to leave
certain definitions found in the 4200 Series that do not relate to
listed Companies. Nasdaq also determined to leave Rule 4370 in the 4000
Series. Rule 4370 concerns additional requirements for the listing of
Nasdaq or Nasdaq affiliate securities on Nasdaq. Because the rule is
specific to Nasdaq and does not apply to Companies generally, Nasdaq
determined it would be confusing and add little value if placed in the
proposed 5000 Series.
Plain English
    Nasdaq's primary goal in reworking the Listing Rules was to make
them more clear and transparent. As noted above, the 4000 Series
evolved over many years and were drafted by multiple individuals. As a
consequence, the 4000 Series was not written with a consistent voice.
Nasdaq has taken this opportunity to, where needed, make plain English
changes to the 4000 Series and re-write certain rule text with a
consistent voice to clarify provisions that have historically caused
confusion, while ensuring not to change the meaning of the reworked
rules. In some cases, this meant eliminating redundant language
throughout the proposed rule text. In other instances, Nasdaq replaced
inconsistently used terms with a single term used throughout the new
rules.
Descriptive Titles and Introductory Language
    Nasdaq renamed many existing rules, using more descriptive titles
that provide a better cue as to what follows. Nasdaq has also added
descriptive introductory language to many sections of the proposed new
5000 Series, which Nasdaq believes provides readers with a logical
roadmap to what follows in each section. For example, Nasdaq has added
a new introduction to the Listing Rules titled ``5000 Series: The
Qualification, Listing, and Delisting of Companies'' under which is
provided a description of what readers will find under each section of
the proposed 5000 Series. Likewise, Nasdaq added descriptive
introductory language to the beginning of the proposed 5000, 5400,
5600, and 5700 Series, and added to the proposed 5500 and 5800 Series
rewritten introductory language taken from the 4300 and 4800 Series,
respectively.
Defined Terms
    Nasdaq has created, modified, or deleted several definitions in the
process of incorporating the 4000 Series into the proposed new 5000
Series. In certain cases, such as the new definition of ``Bid Price,''
Nasdaq sought to add certainty to a term that had been used in the
Listing Rules, but not defined historically. Nasdaq's new definition
clarifies that the term ``Bid Price'' is the closing bid price, which
Nasdaq has always used as the metric for determining bid price. A
common and recurring inquiry by investors and companies alike, Nasdaq
believes that the clarifying language will help to answer a common
question. In other cases, Nasdaq modified a term or its definition to
make it more accurate or precise. As another example, under the old
rules the Adjudicatory Body responsible for reviewing decisions of the
Listing Qualifications Department was named the Listing Qualifications
Panel, notwithstanding that it was in no way associated with the
Listing Qualifications Department. When read together with Rule 4815,
which generally prohibits ex parte communications between the Listing
Qualifications Department and the Listing Qualifications Panel, Nasdaq
thought it appropriate to rename the Listing Qualifications Panel the
Hearings Panel so that there is no confusion surrounding the
independence of the adjudicator.
    Nasdaq is proposing to create a new defined term, ``Company,'' as
found in new Rule 5000(a)(6). Both the terms ``company'' and ``issuer''
are used synonymously throughout the current 4000 Series, however,
neither term is defined. In the proposed new definition, Nasdaq is
defining a Company as the issuer of a security listed or applying to
list on Nasdaq. Nasdaq is also making it clear that, for purposes of
the 5000 Series, the term Company includes an issuer that is not
incorporated, such as a limited partnership. Nasdaq notes that the
inclusion of issuers that are not incorporated is consistent with
Nasdaq's current rules, as such issuers are able to list on Nasdaq
pursuant to specific listing rules.
    In a similar regard, Nasdaq is proposing to define a new term,
``Shareholder.'' In the current 4000 Series, there is no single defined
term that represents the owner of a security that is listed or that is
in the listing application process. Nasdaq is proposing in new Rule
5000(a)(37) to define Shareholder as a record or beneficial owner of a
security listed or applying to list. Nasdaq is including in the
definition of Shareholder limited partners and owners of depository
receipts or units. The inclusive definition of Shareholder does not
change in the proposed 5000 Series how the rules applicable to such
owners are applied currently under the 4000 Series.
    Nasdaq has created new terms ``Publicly Held Shares'' and ``Public
Holders'' in proposed Rules 5000(a)(33) and (a)(34).\14\ The new
definition of Publicly Held Shares is derived from Rules 4310(c)(7)(C)
and 4420(e). Rule 4310(c)(7)(C) is a Capital Market rule, which states
that shares held directly or indirectly by any officer or director of
the Company and by any person who is the beneficial owner of more than
10 percent of the total shares outstanding are not considered to be
publicly held. Rule 4420(e) is a Global Market rule that provides,
among other things, that the method for calculating beneficial
ownership when determining publicly held shares shall be made in
accordance with Rule 13d-3 under the Act.\15\ Nasdaq has historically
used the methodology found in Rule 13d-3 under the Act \16\ when
determining beneficial ownership for purposes of calculating publicly
held shares, regardless of market. By also excluding shares that are
indirectly held by officers and directors, the proposed rules would
also provide transparency to Nasdaq's view that immediate family
members of an Executive Officer, director, or 10 percent holder are
also not Public Holders, and the shares they hold are not Publicly Held
Shares, to the extent those shares are considered beneficially owned by
the Executive Officer, director or 10 percent holder pursuant to Rule
16a-1(a)(2) under the Act.\17\
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    \14\ The Commission notes that the proposed rule text for new
Rule 5000(a)(33) in Exhibit 5A is correct. However, in Exhibit 5C,
on page 569, the column in the table setting forth the new rule text
does not have the correct definition for ``Publicly Held Shares.''
Specifically, the definition for Publicly Held Shares should read
``* * * means shares not held directly or indirectly by an officer,
director or any person who is the beneficial owner of more than 10
percent of the total shares outstanding. Determinations of
beneficial ownership in calculating publicly held shares shall be
made in accordance with Rule 13d-3 under the Act.''
    \15\ 17 CFR 240.13d-3.
    \16\ Id.
    \17\ 17 CFR 240.16a-1(a)(2).
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    Nasdaq has also created a new definition of ``filed with Nasdaq''
in proposed Rule 5000(a)(15). The new definition is derived from Rules
4310(c)(14) and 4320(e)(12), which provide that Companies do not have
to submit paper copies of filings to Nasdaq if these filings have been
filed with the Commission via the EDGAR System. Nasdaq uses the term
throughout the 4000 Series and proposed 5000 Series. Nasdaq believes
the addition of the new definition will help inform readers of how to
satisfy the requirement in the various contexts that it is used in the
rules.

    Nasdaq is proposing to define a new term, ``Other Regulatory
Authority'' in Rule 5000(a)(31). The new term includes regulators other
than the Commission with which certain Companies must file
documentation. In particular, certain Companies are regulated by a bank
or savings authority identified in Section 12(i) under the Act,\18\ and
others may be subject to an exemption issued by the Commission that
permits the listing of the security, notwithstanding its failure to be
registered pursuant to Section 12(b) under the Act.\19\ Nasdaq is
proposing to add the new defined term to certain sections of 5000
Series concerning filing obligations to make clear that filing
requirements are applicable to Companies that are required to file with
the Commission or with an Other Regulatory Authority.\20\
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    \18\ 15 U.S.C. 78l(i).
    \19\ 15 U.S.C. 78l(b).
    \20\ The Commission notes that the proposed rule text for new
Rule 5205(b) in Exhibit 5A is correct. However in Exhibit 5C, on
page 398, the column in the table setting forth the new rule text
does not use the new defined term Other Regulatory Authority, and
should read ``A Company's compliance with the initial listing
criteria will be determined on the basis of the Company's most
recent information filed with the Commission or Other Regulatory
Authority and information provided to Nasdaq. The Company shall
certify, at or before the time of listing, that all applicable
listing criteria have been satisfied.''
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    Nasdaq is proposing to define the term ``Public Reprimand Letter''
in new Rule 5805(j), which means a letter issued by Staff or an
Adjudicatory Body in cases where the Company has violated a Nasdaq
corporate governance or notification listing standard (other than one
required by Rule 10A-3 of the Act \21\) and Staff or the Adjudicatory
Body determines that delisting is an inappropriate sanction. Although
not a defined term under the 4000 Series, the term ``public reprimand
letter'' occurs throughout the Listing Rules and was generally
described by Rule 4801(k)(2), which provides one of two alternate
definitions of the term ``Staff Determination,'' and also under Rule
4811(e)(3), which describes an Adjudicatory Body's authority to issue
Decisions that are public reprimand letters. In the proposed definition
in new Rule 5805(j), Nasdaq combines the concept in the old rules that
a public reprimand letter may be issued by the Staff or an Adjudicatory
Body into the definition of the new defined term.
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    \21\ 17 CFR 240.10A-3.
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Deleted Rules
    Nasdaq has found that certain Listing Rules have historically
caused confusion. In the majority of cases, such rules required minor
clarifying changes or the application of plain English principles. In
other cases, however, the confusion was due to a rule that ran contrary
to other Listing Rules. For example, Nasdaq proposes deleting the first
sentence to Rule 4802(b), which stated, ``An issuer may file a written
request for an exception to any of the standards set forth in the Rule
4000 Series at any time during the pendency of a proceeding under the
Rule 4800 Series.'' Pursuant to Rule 4804, Nasdaq informs a Company of
its determination to limit or prohibit the initial or continued listing
of a Company's securities by way of a staff determination letter.
Pursuant to Rule 4805, a company may request a hearing within seven
calendar days. Once a Company makes a timely appeal, any responses to
additional staff deficiency letters must be made within the seven-
calendar day timeframe. Nasdaq receives questions surrounding the
conflicting meanings of these rules frequently. Nasdaq chose to
eliminate the first sentence to Rule 4802(b), because, although a
Company may submit a written request for an exception at any time in
the hearings process, only a timely submission made pursuant to Rule
4805 is considered. As such, the sentence had little meaning when read
together with the other rules.
    In the current 4000 Series, Nasdaq's limited partnership rules
incorporated the text from FINRA Rule 2810. As a consequence, much of
the language provided in Nasdaq's limited partnership rules mirror
those of the FINRA rule, and required Nasdaq to define several terms
used by FINRA. In the proposed new Rule 5210(h), Nasdaq has adopted the
approach taken by the American Stock Exchange with respect to limited
partnership rules and mirrored Amex Rule 126, which incorporates by
reference FINRA Rule 2810. Accordingly, it was not necessary to include
in the proposed new 5000 Series certain defined terms, which were
provided in the old Listing Rules, due to the inclusion of the FINRA
Rule 2810 text. In addition, by referencing FINRA Rule 2810, Nasdaq was
able to delete a substantial amount of text from Rule 4430 that
mirrored the FINRA rule. This resulted in a much more streamlined
presentation of the limited partnerships rules.
    Nasdaq identified two rules that, by design, have limited periods
of applicability and whose periods have since expired. First, when
Nasdaq created the Global Select Market, it adopted a series of new
rules applicable exclusively to the new market segment. One such rule,
IM 4425 described the initial process that Nasdaq used to determine
which Companies would be assigned to the new market segment in
conjunction with its launch. As such, the rule has no relevance to
Companies going forward and accordingly Nasdaq has deleted it from the
proposed new 5000 Series.
    Similarly, in conjunction with Nasdaq's registration as a national
securities exchange Nasdaq adopted Rule 4305, which described the
process for transitioning securities to the new Nasdaq exchange from
the Nasdaq market. In particular, the rule made clear that securities
listed on the old market's Global Market or Capital Market will be
listed on the respective Global Market or Capital Market of the new
Nasdaq exchange. The rule also clarified that all notices and
deficiencies existing at the time of the transfer to the Nasdaq
exchange would continue to be recognized as proper notices and
deficiencies. Nasdaq notes that Rule 4305 is no longer relevant to
Companies given that any notices or deficiencies received by Companies
while listed on the old Nasdaq market have since been resolved, either
by such Companies regaining compliance with listing standards or by
exhausting any available appellate remedy. Accordingly, Rule 4305 no
longer serves a purpose and has not been included in the proposed new
5000 Series.
Added or Amended Rule Text
    Nasdaq also proposes to amend rule text to clarify the current
application of existing rules. For example, Rule 4310(c) provides a
list of criteria that a Company or its security must meet in order to
list on Nasdaq. Rule 4310(c)(11) requires, among other things, that
Companies shall not currently be suspended from trading by the
Commission pursuant to Section 12(k) under the Act.\22\ Companies must
also be current in filing required reports when listing on Nasdaq, and
remain current while listed on Nasdaq pursuant to Rules 4310(c)(14) and
4320(e)(12). Nasdaq has combined these requirements in proposed new
Rule 5210(e), which also clarifies that suspensions by appropriate
regulatory authorities of a Company's country of domicile are covered
by the rule.
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    \22\ 15 U.S.C. 78l(k).
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    Rules 4310(c)(14) and 4320(e)(12) require Companies applying to
list on Nasdaq to provide three copies of all reports and other
documents filed or required to be filed with the Commission. Companies
that file using the Commission's EDGAR System are exempted from this
requirement. Rule 4310(c)(14) further requires Companies

that are not required to file reports with the Commission to provide
three copies of reports required to be filed with its appropriate
regulatory authority to Nasdaq in connection with its application to
list its securities. Nasdaq proposes to require only one copy of
required reports for these Companies in proposed Rule 5205(d). Nasdaq
believes that, for the few Companies that must provide copies of
reports to Nasdaq, a single copy is sufficient for Nasdaq's purposes.
    Nasdaq proposes combining Rule 4310(c)(15) with Rule 4330, which
describes a Company's obligation to provide information to Nasdaq, into
new Rule 5250(a). Rule 4310(c)(15) requires Companies to provide full
and prompt responses to requests by Nasdaq for information related to
unusual market activity or to events that may have a material impact on
trading of its securities in Nasdaq. Rule 4330 sets forth Nasdaq's
general authority to request any additional information or
documentation, public or non-public, deemed necessary to make a
determination regarding a security's initial or continued listing. In
new Rule 5250(a) Nasdaq clarifies that the responsibility to respond
promptly to requests for information applies to requests both from
Nasdaq, and from FINRA, acting on behalf of Nasdaq. FINRA provides
certain regulatory services to Nasdaq and must have access to
information to adequately perform such services.
    Rule 4310(c)(16) requires Companies to promptly disclose to the
public any material information that would reasonably be expected to
affect the value of its securities or influence investors' decisions.
Pursuant to the rule, if the information involves certain events set
forth in IM-4120-1, Companies must provide prior notice of the
disclosure to Nasdaq's MarketWatch Department. Nasdaq is moving Rule
4310(c)(16) to proposed new Rule 5250(b)(1) with only minor changes.
Nasdaq has, however, added clarifying language regarding the method by
which notices to the MarketWatch Department should be made. As
described in IM-4120-1, and proposed new IM-5250-1, prior notice of a
required disclosure should be made through Nasdaq's Web-based
electronic disclosure system.
    Rule 4310(c)(23)(A), which applies to all Nasdaq tiers, was
modified in the new rules to make clear that all securities listed on
both the Capital Market and Nasdaq Global Market must have a Committee
on Uniform Securities Identification Procedures number (a ``CUSIP
number'') or foreign equivalent. Currently, Rule 4310(c)(23)(A)
requires that domestic securities have a CUSIP number; however, the
rule does not require Canadian securities to have a CUSIP. Rule 4320,
which applies to non-Canadian Foreign securities and American
Depository Receipts, also does not have a similar identification
assignment requirement. A CUSIP number is a security-specific number
that identifies stocks of all registered U.S. and Canadian companies,
and U.S. government and municipal bonds. Historically, Nasdaq has not
explicitly required Canadian securities listed on Nasdaq to follow the
general requirement that Nasdaq-listed securities have a CUSIP number;
however, as a practical matter, all Canadian securities listed on
Nasdaq have a CUSIP number. Likewise, although Nasdaq has not
historically required an equivalent to the CUSIP number for non-
Canadian foreign securities, all such securities currently listed on
Nasdaq have an identifier. The use of a CUSIP number or foreign
equivalent facilitates efficient clearing and settlement processes.
Nasdaq believes that all securities listed on Nasdaq should have such a
number to facilitate a fair and orderly market, and to date, all listed
Companies have such a number. As such, Nasdaq is explicitly requiring
all Nasdaq-listed securities to have a CUSIP number or equivalent, as
denoted in proposed new Rule 5210(g)(2).
    Rule 4320(e)(1) sets forth the Capital Market non-Canadian foreign
securities and American Depository Receipt initial and continued
listing requirements regarding market makers. Nasdaq is moving a part
of Rule 4320(e)(1), which discusses how such a deficiency is determined
and the timeframe in which to regain compliance, to proposed new Rule
5810(c)(3)(B). Unlike Rule 4310(c)(8)(A), which is the Capital Market
Domestic and Canadian Company continued listing requirement for Market
Makers, Rule 4320(e)(1) is silent on how a Company can regain
compliance with the non-Canadian foreign securities and American
Depository Receipt continued listing Market Maker requirement. As a
matter of practice, Nasdaq has applied the same test to non-Canadian
foreign securities and American Depository Receipts as Domestic and
Canadian issues. As such, proposed new Rule 5810(c)(3)(B) applies both
to Domestic and Canadian Companies, as well as non-Canadian foreign
securities and American Depository Receipts, and includes a description
of how compliance can be achieved based on Rule 4310(c)(8)(A).
    Nasdaq is proposing to divide Rules 4310(c)(14) and 4320(e)(12),
which set forth the requirement that Companies provide Nasdaq with
three copies of all reports and other documents filed or required to be
filed with the Commission, into two new rules. Proposed Rule 5205(d)
applies to Companies seeking initial listing, and in which Nasdaq has
proposed reducing the number of paper copies of required reports and
documents that must provided to Nasdaq by Companies that do not file
through EDGAR System from three to one. Proposed Rule 5250(c)(1)
applies to the continued listing of securities and allows Companies
that do not file through the Commission's EDGAR System to comply with
the rule by providing Nasdaq two copies of required reports and
documents, which can be provided by e-mail. Nasdaq has also added a
requirement to both of the proposed new rules not found in Rule
4320(e)(12) that requires annual reports to contain audited financial
statements. Rule 4310(c)(14) requires that Domestic and Canadian
Companies have audited financial statements in their annual reports;
however, there is not an analogous requirement for securities listed
pursuant Rule 4320, notwithstanding that Companies listing non-Canadian
foreign securities or American Depository Receipts must have audited
financial statements in their annual reports pursuant to Rule
4350(b)(1)(A). Accordingly, Nasdaq is adding clarifying language to
make it clear that the audited financial statement requirement applies
equally to all Companies.
    Rules 4310(c)(22) and 4420(h)(3) set forth the specific disclosure
requirements for Companies applying to list units on the Capital Market
and Global Market, respectively. Nasdaq proposes moving Rules
4310(c)(22) and 4420(h)(3) to new Rules 5225(b) and 5225(a),
respectively. Although, no changes are made to the rule text in the new
proposed rules, Nasdaq is making clear that when determining
eligibility for listing units, all components of the unit must meet
Nasdaq initial listing standards, including Rule 4310(a)(1), as found
in proposed Rule 5210(a)(1), which require securities to be registered
pursuant to Section 12(b) under the Act.\23\
---------------------------------------------------------------------------

    \23\ 15 U.S.C. 78l(b).
---------------------------------------------------------------------------

    Nasdaq has combined Rules 4340(b) and 4450(f), which concern
Nasdaq's process with respect to Companies in bankruptcy or the
liquidation process. Under Rule 4300, Nasdaq has broad

discretionary authority over the initial and continued listing of
securities on all Nasdaq market tiers, including using such authority
when a Company files for protection under any provision of the Federal
bankruptcy laws or comparable foreign laws. Rule 4340(b) details
Nasdaq's discretionary authority to delist a Company should it file for
bankruptcy protection and describes further a Company's obligations
should Nasdaq not exercise its discretion to delist. Rule 4450(f) is a
Global Market rule that restates Nasdaq's authority to delist a Company
should it file for bankruptcy stated in Rule 4340(b), but also provides
that Nasdaq may delist a Company's securities if it has announced that
liquidation has been authorized by its board of directors and that it
is committed to proceed. Although it has been a long-standing practice
of Nasdaq to exercise its discretionary authority to delist a Company
from any market tier should such a Company announce that liquidation
has been authorized by its board, Rule 4340(b) was silent on how Nasdaq
would proceed in cases involving Capital Market Companies. Accordingly,
Nasdaq is combining Rule 4340(b) and 4450(f) into new Rule 5110(b) so
that it is clear that any Nasdaq Company, regardless of tier, may be
delisted should it announce that its board determined to liquidate the
Company.
    Rule 4350(i)(3) describes what shares are considered for
calculations involving shareholder approval. Often confusing to
Companies, Nasdaq has rewritten the rule in proposed new Rule
5635(e)(1) to clarify the application of the old rule by providing
additional detail on the method used to calculate shares issued in a
transaction, and the method to determine the number of shares
outstanding. The new rule, however, does not change the application or
calculation found in Rule 4350(i)(3).
    Nasdaq proposes combining part of Rule 4410(a) and Rule 4330 into
new Rule 5205(e). Rule 4410(a) is a Global Market rule that requires,
in part, Companies to provide Nasdaq information relevant to an initial
listing determination upon Nasdaq's request. Rule 4330 sets forth
Nasdaq's general authority to request any additional information or
documentation, public or non-public, deemed necessary to make a
determination regarding a security's initial or continued listing.
Under the new combined Rule 5205(e), Nasdaq is applying the broader
authority to request any information or documentation to make a an
initial listing determination found in Rule 4330, which currently
applies to all market tiers. As a result, the new Rule will be a more
accurate reflection of the already existing authority to request
information found under Rule 4330.
    Nasdaq has made clarifying changes to Rule 4426(f), which explains
what type of securities other than common stock may be included in the
Global Select Market, as found under proposed new Rule 5320. Nasdaq has
clarified the type of securities that may be listed on the Global
Select Market by using the defined term Primary Equity Security to
replace the term ``common stock'' and by noting the types of securities
that are not eligible to be listed with a cross reference to the rule
governing such securities' listing. The defined term Primary Equity
Security includes common stock in addition to Ordinary Shares, Shares
or Certificates of Beneficial Interest of Trust, Limited Partnership
Interests or American Depositary Receipts or American Depositary
Shares, all of which are eligible for listing on the Global Select
Market under the current rules.
    Nasdaq has expanded the scope of the 4800 Series, now found in the
5800 Series, to include details on deficiency processing. In the 4800
Series, for example, a description of the compliance periods available
to a Company that failed to meet the bid price requirement was located
in the 4310, 4320 and 4450 Series. In the new rules, Nasdaq proposes
consolidating all these descriptions into the 5800 Series. As a
consequence, Nasdaq has changed the introductory language to the 4800
Series that was previously contained in Rule 4802(a) and now found in
the introduction to the 5800 Series to include more than procedures for
the independent review of Nasdaq determinations. The new 5800 Series
introduction describes all the procedures for Companies found to be
deficient in Nasdaq listing requirements.
    Nasdaq is proposing to add new clarifying language to Rule 4802(c),
found in proposed new Rule 5840(b). The proposed new rule clarifies
that information compiled under the rule will be made part of the
record, which includes any written notice provided by the Adjudicator
requesting information, responses to the notice, and the information
considered. Although this authority is also stated in Rule 4811, which
concerns the record on review in a proceeding and can be found under
Rule 5840, Nasdaq believes that it is appropriate to make this
authority clear under proposed Rule 5840(b) as well.
    Nasdaq is proposing to make clarifying changes to Rule 4803, as
found in new Rule 5810. Rule 4803(a) requires, among other things,
staff of the Listing Qualifications Department to immediately notify a
Company once the staff has determined that the Company does not meet a
listing standard. This requirement is found in proposed new Rule 5810,
which also provides additional clarifying information regarding the
types of notifications sent by staff to Companies that fail to meet a
listing standard. Nasdaq believes such clarifying information is
helpful to Companies in understanding Nasdaq's deficiency notice
process.
    Nasdaq is proposing to make clarifying changes to Rule 4803(a)(3),
which sets forth the process that Nasdaq Listing Qualifications
Department staff will follow when it determines that a Company does not
meet a listing standard that provides for a compliance period or
certain standards that provide a cure period. The requirements of Rule
4803(a)(3) are found in proposed new Rule 5810(c)(3). Proposed Rule
5810(c)(3) also provides greater detail about the compliance periods
and cure periods afforded under the rules implicated by Rule
4803(a)(3), since the relevant language formerly located in Rules 4310,
4320, 4350, 4360, and 4450 has been incorporated into proposed new Rule
5810(c)(3). Nasdaq believes that consolidating the applicable rules
under the new rule provides a more useful format, and that providing
more descriptive information will help the reader to better understand
the deficiency process.
    Nasdaq is proposing to make clarifying changes to Rule 4803(a)(4),
which states that Nasdaq will issue a Staff Determination letter in all
cases not noted in Rules 4803(a)(1)-(3). This requirement is found in
proposed new Rule 5810(c), but because the new rule is structured as
the introductory paragraph for various types of notices provided by
staff, Nasdaq has added new descriptive information to Rule 5810(c)
that explains that the type of deficiency identified by Listing
Qualifications Department staff will determine whether the Company will
receive immediately a delisting determination resulting in the
suspension of the Company's securities unless appealed, or if the
Company will be afforded the opportunity to provide staff with a
compliance plan, or receive a cure period or compliance period prior to
receiving a delisting determination.
    Nasdaq proposes clarifying changes to Rule 4804(a), as found in
proposed new Rules 5810(a)(1)-(3). The old rule was significantly
expanded to provide greater detail on the types of letters

issued by Staff, and the effects of these letters. Rule 4804(a) only
specifies what is contained in a Staff Delisting Determination.
Proposed Rules 5810(a)(1)-(3) provide detail on what is contained in
each type of deficiency letter. Similarly, Nasdaq has added clarifying
language to Rules 4804(c)-(d), as found in proposed new Rule 5810(d).
Rules 4804(c)-(d) discuss the written notices of additional
deficiencies from Staff to Companies under the review of an
Adjudicatory Body. New Rule 5810(d) provides more clarity on
notifications of additional deficiencies that are identified by Staff
for a Company under the review of an Adjudicatory Body.
    Nasdaq Rule 4805 concerns requests for hearings before the Hearings
Panel. Pursuant to the rule, a Company must request a hearing within
seven calendar days of the Staff Determination. The rule, however, is
unclear on the form that the request must be made (i.e., oral or
written). In contrast, Rule 4807 explicitly states that Companies
requesting a review by the Nasdaq Listing and Hearing Review Council
must do so in writing. Rule 4808 concerns the reconsideration of both
Hearings Panel and Nasdaq Listing and Hearing Review Council decisions.
Pursuant to Rule 4808(a), a Company may request the Hearings Panel
reconsider a Hearings Panel Decision upon the basis that a mistake of
material fact existed at the time of the Decision. A similar provision
applicable to Nasdaq Listing and Hearing Review Council Decisions is
found in Rule 4808(b). Rules 4808(a) and (b), however, are silent on
the form that such requests must be made. Although it is common
practice for Companies to submit requests pursuant to Rules 4805 and
4808(a) and (b) in writing, Nasdaq believes that such a practice should
be codified in the proposed 5800 Series. Written requests not only
provide documentation of such requests, they also become part of the
written record on review. Accordingly, Nasdaq is taking this
opportunity to harmonize the process for these rules by requiring all
such request to be in writing, as provided by proposed new Rules 5815,
5820(a), 5815(d)(5), and 5820(e)(4).
    Nasdaq also proposes combining, in part, Rules 4804(e) and 4805(a).
Rule 4804 concerns written notices of staff determinations, and
paragraph (e) states that a Company that fails to request a Panel
hearing timely after receiving a Staff Determination, other than a
Public Reprimand, will be subject to suspension and delisting. Rule
4805 concerns requests for Panel hearings, and paragraph (a), among
other things, sets forth the process for requesting a Panel hearing
timely, yet does not mention that failure to request a hearing timely
will result in suspension and delisting as discussed in Rule 4804(e).
Nasdaq is proposing to combine the two rules into new Rule 5815(a)(2),
which will provide a central location for all consequences resulting
from failing to request a Panel hearing timely, and will make clear
that such a failure will result in the immediate suspension and
delisting.
    Nasdaq is proposing to make clarifying changes to Rule 4805(c), as
found in new Rule 5815(a)(5). Rule 4805(c) describes the nature of the
written submission that a Company may provide as part of the hearings
process, which could state the specific grounds for the Company's
contention that the Staff Determination was in error, or could request
that the Hearings Panel grant the Company an exception to the listing
standards, as permitted by Rule 4802. Proposed new Rule 5815(a)(5)
provides a more detailed description of the submission that a Company
may submit to the Hearings Panel when seeking an exception to the
listing standards. In particular, the new rule provides that a
Company's submission may be in the form of a written plan to regain
compliance with Nasdaq listing standards together with a request that
the Panel grant the Company an exception to the listing standards to
regain compliance, as permitted by proposed new Rule 5815(c)(1)(A).
Although not stated in the old rule, the ability to provide a plan of
compliance and request an exception is implied by the fact that the
Hearings Panel may grant exceptions to the listing standards. Nasdaq is
also proposing to add further clarifying language that makes clear that
the Hearings Panel will review the written record prior to the hearing,
consistent with proposed new Rule 5840(a), which addresses the record
on review and captures much of the current rule that addresses the
record on review, Rule 4811.
    Nasdaq is proposing clarifying changes to Rule 4806(a), which sets
forth the Panel Hearing process. Rule 4806(a) provides, among other
things, that a Company may make a presentation as it deems appropriate
to the Hearings Panel. Rule 4806(a) does not make a distinction between
an oral hearing and a written hearing. Much of Rule 4806(a) is conveyed
in new Rule 5815(a)(6), which concerns presentations at Panel Hearings.
In the proposed new rule, Nasdaq is making it clear that presentations
by Companies are allowed only at oral hearings. The limitation to oral
hearings is consistent with Nasdaq's long-standing practice.
    Nasdaq is proposing to add clarifying language to Rule 4811(b),
which concerns additional documents considered as part of the written
record in a proceeding. Rule 4811(b) provides that if any additional
information is considered as permitted by Rule 4802(c), that
information and any written submission addressing the significance of
that information, shall be made part of the record. Rule 4802(c)
provides, among other things, that an Adjudicator may request
additional information from the Company or Listing Qualifications
Department, and may consider information from any source it deems
relevant. Rule 4802(c)(2) provides that the Listing Qualifications
Department and Company will be afforded written notice and an
opportunity to address the significance of information from any source
the Adjudicatory Body deems relevant to consider. Rule 4802(c)(2) does
not, however, note that the information considered by Adjudicatory Body
and any written submissions addressing the significance of such
information by the Listing Qualifications Department or Company will be
made part of the record. Nasdaq proposes combining Rules 4802(c)(2) and
4811(b) into new Rule 5840(b)(2), which will provide a single location
for the rules applicable to information from sources other than the
Listing Qualifications Department and Company considered by an
Adjudicatory Body.
    Nasdaq is proposing clarifying changes to Rule 4811(e), which sets
forth the scope of what action an Adjudicatory Body Decision may direct
if it is determined that a Company failed to satisfy the quantitative
standards or qualitative considerations set forth in the 4000 Series.
Currently, Rule 4811(e) applies equally to the Hearings Panel, Listing
Council and the Board. Nasdaq is proposing to house rules generally
applicable to the review by the Hearings Panel, Listing Council, and
Board under proposed new Rule Series 5815, 5820, and 5825,
respectively. Proposed Rules 5815(c)(1) and (2) address the scope of
the Hearings Panel's discretion, and contains the requirements found in
Rule 4811(e). Unlike Rule 4811(e), which describes only the action a
Hearings Panel may take in issuing a decision if it concludes that a
Company has failed to satisfy a qualitative or quantitative listing
standard, proposed Rules 5815(c)(1) and (2) describe the possible
action the Hearings Panel may take in issuing a decision and is not
limited to a determination that a Company has

failed to meet a listing standard. As such, proposed Rules 5815(c)(1)
and (2) provide significantly greater clarity on the options available
to the Hearings Panel when issuing a decision by including the
alternatives should a Company regain compliance with an applicable
standard during the Hearings process. In that regard, the new rule
includes in Rule 5815(c)(1)(E) the Panel's options when determining
that a Company has evidenced compliance with all the applicable listing
standards.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with
the provisions of Section 6 under the Act,\24\ in general and with
Section 6(b)(5) under the Act,\25\ in particular. Section 6(b)(5) \26\
requires that Nasdaq's rule be designed to promote just and equitable
principles of trade, to foster cooperation and coordination with
persons engaged in regulating, clearing, settling, processing
information with respect to, and facilitating transactions in
securities, to remove impediments to and perfect the mechanism of a
free and open market and a national market system, and, in general, to
protect investors and the public interest. Nasdaq believes that
reorganizing the Listing Rules into a new, more intuitive structure
will help avoid investor confusion and foster better understanding of
Nasdaq's listing requirements among both investors and companies alike.
Nasdaq also believes that the use of plain English and descriptive
language will help make the Listing Rules more accessible to the
investing public. As such, Nasdaq believes the proposed rule change
will promote just and equitable principles of trade, remove impediments
to and perfect the mechanism of a free and open market and a national
market system, and protect investors and the public interest.
---------------------------------------------------------------------------

    \24\ 15 U.S.C. 78f.
    \25\ 15 U.S.C. 78f(b)(5).
    \26\ Id.
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

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

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others

    On December 3, 2007, Nasdaq solicited comment from issuers on the
impact of the revisions to the rules. Nasdaq received three responses
to this solicitation, two from representatives of companies and one
from a law firm. One of the commentators voiced support for the rule
change. Two commentators suggested minor changes to enhance the
readability and ease of use of the new rules. Specifically, one
commentator suggested clarifying the meaning of a particular sentence,
and the other suggested that Nasdaq use hyperlinks throughout the rule
text to help readers navigate to rules or interpretive material
referenced in the rule text. In response, Nasdaq has amended the
sentence consistent with the comment. Nasdaq also plans on using
hyperlinks within its on-line manual to simplify navigation.
    The third commentator requested clarification on Nasdaq's changes
so that he could more fully reply. This commentator did not provide a
follow-on submission to Nasdaq.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days after the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \27\ and Rule 19b-
4(f)(6) thereunder.\28\
---------------------------------------------------------------------------

    \27\ 15 U.S.C. 78s(b)(3)(A).
    \28\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires the self-regulatory organization to give the Commission
notice of its intent to file the proposed rule change, along with a
brief description and text of the proposed rule change, at least
five business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission. Nasdaq
has satisfied this requirement.
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, 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_ADDRESS>Please include
File Number SR-NASDAQ-2009-018 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2009-018. 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, 100 F Street,
NE., Washington, DC 20549, on official business days between the hours
of 10 a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of the Nasdaq 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-2009-
018 and should be submitted on or before April 27, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\29\
---------------------------------------------------------------------------

    \29\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-7630 Filed 4-3-09; 8:45 am]

BILLING CODE 8010-01-P