Federal Register / Vol. 74, No. 18 / Thursday, January 29, 2009 / Notices 5197 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3 17 CFR 240.19b–4(f)(6). 

4Changes are marked to the rule text that appears 

in the electronic manual of Nasdaq found at http:// 

nasdaqomx.cchwallstreet.com. 

5See Rules 4310(c)(8)(C), 4320(e)(2)(D) and 

4450(e)(4). 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59291; File No. SR– 

NASDAQ–2009–002] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change To Modify the 

Compliance Period Applicable to 

Companies That Fail To Meet the 

Market Value of Listed Securities 

Requirement 

January 23, 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 January 

13, 2009, The NASDAQ Stock Market 

LLC (‘‘Nasdaq’’) filed with the Securities 

and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I and II 

below, which Items have been prepared 

by Nasdaq. Nasdaq has designated the 

proposed rule change as effecting a 

change described under Rule 19b–4(f)(6) 

under the Act,3 which renders the 

proposal effective upon filing with the 

Commission. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

Nasdaq proposes to modify the 

compliance period applicable to listed 

companies that fail to meet the market 

value of listed securities requirement. 

The text of the proposed rule change 

is below. Proposed new language is 

italicized; proposed deletions are in 

[brackets].4

4310. Listing Requirements for Domestic 

and Canadian Securities. 

To qualify for listing in Nasdaq, a 

security of a domestic or Canadian 

issuer shall satisfy all applicable 

requirements contained in paragraphs 

(a), (b), and (c) hereof. Issuers that meet 

these requirements, but that are not 

listed on the Nasdaq Global Market, are 

listed on the Nasdaq Capital Market. 

(a)–(b) No change 

(c) In addition to the requirements 

contained in paragraph (a) and (b) 

above, and unless otherwise indicated, 

a security shall satisfy the following 

criteria for listing on Nasdaq: 

(1)–(7) No change. 

(8) (A)–(B) No change. 

(C) A failure to meet the continued 

listing requirement for market value of 

listed securities shall be determined to 

exist only if the deficiency continues for 

a period of 10 consecutive business 

days. Upon such failure, the issuer shall 

be notified promptly and shall have a 

period of [30] 90 calendar days from 

such notification to achieve compliance. 

Compliance can be achieved by meeting 

the applicable standard for a minimum 

of 10 consecutive business days during 

the [30] 90 day compliance period. 

(D)–(E) No change. 

(9)–(30) No change. 

(d) No change. 

4320. Listing Requirements for NonCanadian Foreign Securities and 

American Depositary Receipts. 

To qualify for listing on Nasdaq, a 

security of a non-Canadian foreign 

issuer, an American Depositary Receipt 

(ADR) or similar security issued in 

respect of a security of a foreign issuer 

shall satisfy the requirements of 

paragraphs (a), (b), and (e) of this Rule. 

Issuers that meet these requirements, 

but that are not listed on the Nasdaq 

Global Market, are listed on the Nasdaq 

Capital Market. 

(a)–(d) No change. 

(e) In addition to the requirements 

contained in paragraphs (a) and (b), the 

security shall satisfy the criteria set out 

in this subsection for listing on Nasdaq. 

In the case of ADRs, the underlying 

security will be considered when 

determining the ADR’s qualification for 

initial or continued listing on Nasdaq. 

(1) No change. 

(2) (A)–(C) No change. 

(D) A failure to meet the continued 

listing requirements for market value of 

listed securities shall be determined to 

exist only if the deficiency continues for 

a period of 10 consecutive business 

days. Upon such failure, the issuer shall 

be notified promptly and shall have a 

period of [30] 90 calendar days from 

such notification to achieve compliance 

with the applicable continued listing 

standard. Compliance can be achieved 

by meeting the applicable standard for 

a minimum of 10 consecutive business 

days during the [30] 90 day compliance 

period. 

(E) No change. 

(3)–(26) No change. 

(f) No change. 

* * * * * 

4450. Quantitative Maintenance 

Criteria. 

After listing as a Nasdaq Global 

Market security, a security must 

substantially meet the criteria set forth 

in paragraphs (a) or (b), and (c), (d), (e) 

(f), (g), (h) or (i) below to continue to 

remain listed on the Nasdaq Global 

Market. A security maintaining its 

listing under paragraph (b) need not also 

be in compliance with the quantitative 

maintenance criteria in the Rule 4300 

series. 

(a)–(d) No change. 

(e) Compliance Periods 

(1)–(3) No change. 

(4) A failure to meet the continued 

listing requirements for market 

[capitalization] value of listed securities 

shall be determined to exist only if the 

deficiency continues for a period of 10 

consecutive business days. Upon such 

failure, the issuer shall be notified 

promptly and shall have a period of [30] 

90 calendar days from such notification 

to achieve compliance with the 

applicable continued listing standard. 

Compliance can be achieved by meeting 

the applicable standard for a minimum 

of 10 consecutive business days during 

the [30] 90 day compliance period. 

(f)–(i) No change. 

* * * * * 

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 proposes to modify the 

procedures applicable to listed 

companies that fail to meet the market 

value of listed securities requirement. A 

company fails to meet the continued 

listing requirement for market value of 

listed securities if the market value of 

listed securities is below the applicable 

threshold for a period of 10 consecutive 

business days.5 Upon such a failure, the 

company is currently provided a 

‘‘compliance period’’ of 30 calendar 

days to achieve compliance. 

Compliance is achieved by meeting the 

requirement for a minimum of 10 


rmajette on PRODPC74 with NOTICES
5198 Federal Register / Vol. 74, No. 18 / Thursday, January 29, 2009 / Notices 

6See Rules 4310(c)(8)(B) and 4450(e)(1). 

7Nasdaq also notes that the market value of listed 

securities requirement operates as an alternative to 

other listing requirements. See Rules 4310(c)(3), 

4320(e)(2)(B), 4350(a) and 4350(b). However, while 

a company that previously qualified under any of 

the alternative listing requirements is permitted by 

Rule 4803(a)(1)(A) to provide Nasdaq staff with a 

plan to regain compliance and could receive a staff 

exception of up to 105 calendar days, a company 

that qualified under the market value of listed 

securities requirement is only permitted 30 

calendar days to regain compliance if it becomes 

deficient. 

8The company could also regain compliance by 

meeting one of the alternative listing requirements. 

For example, a company that fails to meet the 

market value of listed securities requirement could 

raise enough equity during the 90 day compliance 

period to meet the applicable equity requirement. 

9Nasdaq also proposes to correct a reference in 

Rule 4450(e)(4) that currently refers to ‘‘market 

capitalization’’ to instead refer to ‘‘market value of 

listed securities.’’ Nasdaq inadvertently failed to 

change this reference when it changed the 

description of the underlying initial and continued 

listing requirement. See Securities Exchange Act 

Release No. 45283 (January 15, 2002), 67 FR 3520 

(January 24, 2002) (approving SR–NASD–2001–84). 10 15 U.S.C. 78f. 11 15 U.S.C. 78f(b)(5). 12 15 U.S.C. 78s(b)(3)(A). 13 17 CFR 240.19b–4(f)(6). Pursuant to Rule 19b– 

4(f)(6)(iii) under the Act, the Exchange is required 

to give the Commission written notice of its intent 

to file the proposed rule change, along with a brief 

description and text of the proposed rule change, 

at least five business days prior to the date of filing 

of the proposed rule change, or such shorter time 

as designated by the Commission. The Exchange 

has requested that the Commission waive the 5-day 

pre-filing notice requirement. The Commission has 

determined to waive this requirement. 

14 17 CFR 240.19b–4(f)(6). 

15 17 CFR 240.19b–4(f)(6)(iii). 

16See discussion supra regarding companies 

already in a compliance period and companies that 

have already received a delisting notification. 

17For purposes only of waiving the 30-day 

operative delay, the Commission has considered the 

proposed rule’s impact on efficiency, competition, 

and capital formation. 15 U.S.C. 78c(f). 

consecutive business days during the 30 

day compliance period. 

Nasdaq has come to believe that the 

30 day compliance period afforded by 

the existing rules is too short a period, 

especially during periods of market 

turmoil. Further, while companies are 

only allowed a 30 day period to regain 

compliance with the market value of 

listed securities requirement, they are 

allowed a 90 day compliance period to 

regain compliance with the requirement 

for market value of publicly held 

securities,6 which is a subset of all listed 

securities.7 As such, Nasdaq proposes to 

modify the compliance period 

applicable to a company that fails to 

meet the market value of listed 

securities requirement to extend the 

compliance period from 30 days to 90 

days, making it the same as the 

compliance period for the market value 

of publicly held securities requirement.8

Nasdaq proposes that any company 

that previously received a delisting 

notification for failing to meet the 

market value of listed securities 

requirement would continue to be 

subject to delisting for that reason, 

unless a Hearings Panel grants the 

company an exception pursuant to Rule 

4802(b)(2). A company that has not yet 

received a delisting notification from 

Nasdaq staff would have its compliance 

period extended to 90 calendar days 

from the date it was notified of the 

original deficiency. Thus, for example, 

if 25 days had elapsed since the 

company was notified of its 30-day 

compliance period under the old rule, 

the company would have an additional 

65 days (including the five days 

remaining in the original compliance 

period), for a total compliance period of 

90 days from the original notification.9

2. Statutory Basis 

Nasdaq believes that the proposed 

rule change is consistent with the 

provisions of Section 6 of the Act,10 in 

general and with Section 6(b)(5) of the 

Act,11 in particular in that it is designed 

to prevent fraudulent and manipulative 

acts and practices, to promote just and 

equitable principles of trade, to foster 

cooperation and coordination with 

persons engaged in regulating, clearing, 

settling, processing information with 

respect to, and facilitating transactions 

in securities, to remove impediments to 

and perfect the mechanism of a free and 

open market and a national market 

system, and, in general, to protect 

investors and the public interest. The 

proposed rule change would modify 

Nasdaq’s treatment of non-compliance 

with the market value of listed 

securities requirement in order to help 

allow companies sufficient time to cure 

a deficiency, especially during turbulent 

market environments, thereby 

protecting investors, facilitating 

transactions in securities, and removing 

an impediment to a free and open 

market. 

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 

Because the proposed rule change: (i) 

Does not significantly affect the 

protection of investors or the public 

interest; (ii) does not impose any 

significant burden on competition; and 

(iii) does not become operative for 30 

days after the date of the filing, or such 

shorter time as the Commission may 

designate if consistent with the 

protection of investors and the public 

interest, the proposed rule change has 

become effective pursuant to Section 

19(b)(3)(A) of the Act 12 and Rule 19b– 

4(f)(6) thereunder.13

A proposed rule change filed 

pursuant to Rule 19b–4(f)(6) under the 

Act 14 normally does not become 

operative for 30 days after the date of its 

filing. However, Rule 19b–4(f)(6)(iii) 15

permits the Commission to designate a 

shorter time if such action is consistent 

with the protection of investors and the 

public interest. The Exchange has 

requested that the Commission waive 

the 30-day operative delay. 

The Commission believes that 

waiving the 30-day operative delay is 

consistent with the protection of 

investors and the public interest 

because the proposed rule change will 

conform the length of the compliance 

period for a failure to meet the 

continued listing requirement for 

market value of listed securities with 

the current compliance period for a 

failure to meet the continued listing 

requirement for market value of publicly 

held shares. Because the publicly held 

shares listing requirement is merely a 

subset of the market value of listed 

securities requirement, the Commission 

believes that allowing companies that 

are deficient in the market value of 

listed securities requirement the same 

maximum time of 90 days that is 

currently available to cure a market 

value of publicly held securities 

deficiency raises no new regulatory 

issues. In addition, the Commission 

believes that waiving the 30-day 

operative delay will allow Nasdaq to 

immediately afford companies that may 

be deficient in the market value of listed 

securities requirement due to recent 

market volatility and conditions an 

additional 60 days to regain 

compliance.16 For these reasons, the 

Commission designates that the 

proposed rule change become operative 

immediately upon filing.17

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission may summarily abrogate 

the rule change if it appears to the 

Commission that such action is 

necessary or appropriate in the public 

interest, for the protection of investors, 


rmajette on PRODPC74 with NOTICES
Federal Register / Vol. 74, No. 18 / Thursday, January 29, 2009 / Notices 5199 

18 17 CFR 200.30–3(a)(12). 

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 rulecomments@sec.gov. Please include File 

Number SR–NASDAQ–2009–002 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–2009–002. 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, on official business days between 

the hours of 10 a.m. and 3 p.m. Copies 

of the 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–2009–002 and should be 

submitted on or before February 19, 

2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.18

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–1943 Filed 1–28–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59185; File No. 

SR–NYSE–2008–141] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing and Order Granting Accelerated 

Approval of Proposed Rule Change To 

Extend the Pilot Period for the NYSE 

Realtime Reference Prices Pilot 

Program 

Correction 

In notice document E9–9 beginning 

on page 749 in the issue of Wednesday, 

January 7, 2009 make the following 

correction: 

On page 750, in the third column, in 

the last line of the first paragraph, 

‘‘January 27, 2009’’ should read 

‘‘January 28, 2009’’. 

[FR Doc. Z9–9 Filed 1–28–09; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT of STATE 

[Public Notice 6499] 

Bureau of Educational and Cultural 

Affairs (ECA) 

Request for Grant Proposals: 

American Serbia & Montenegro Youth 

Leadership Exchange (A–SMYLE) 

Program. 

Announcement Type: New Grant. 

Funding Opportunity Number: ECA/ 

PE/C/PY–09–19. 

Catalog of Federal Domestic 

Assistance Number: 00.000. 

Key Dates: 

Application Deadline: March 27, 

2009. 

Executive Summary: The Office of 

Citizen Exchanges’ Youth Programs 

Division announces an open 

competition for the American Serbia & 

Montenegro Youth Leadership Exchange 

(A–SMYLE) Program, for high school 

students from Montenegro and Serbia. 

Public and private non-profit 

organizations meeting the provisions 

described in Internal Revenue Code 

section 26 U.S.C. 501(c)(3) may submit 

proposals to recruit and select high 

school students aged 15–17 from 

Montenegro and Serbia, place them with 

host families and schools for an 

academic year of study in the United 

States, provide activities that will 

enable the students to learn about 

leadership, civic responsibility, 

community activism, democracy, and 

American society, as well as to educate 

Americans about their countries and 

cultures, and to support alumni in 

projects at home. 

I. Funding Opportunity Description 

Authority 

Overall grant making authority for 

this program is contained in the Mutual 

Educational and Cultural Exchange Act 

of 1961, Public Law 87–256, as 

amended, also known as the FulbrightHays Act. The purpose of the Act is ‘‘to 

enable the Government of the United 

States to increase mutual understanding 

between the people of the United States 

and the people of other countries * * *; 

to strengthen the ties which unite us 

with other nations by demonstrating the 

educational and cultural interests, 

developments, and achievements of the 

people of the United States and other 

nations * * * and thus to assist in the 

development of friendly, sympathetic 

and peaceful relations between the 

United States and the other countries of 

the world.’’ The funding authority for 

program is provided through Support 

for East European Democracy (SEED) 

legislation. 

Purpose 

The goals of the program are to 

develop a sense of civic responsibility 

and commitment to community 

development among youth; to foster 

relationships among youth from 

different ethnic, religious, and national 

groups; to assist the successor 

generation of Montenegro and Serbia in 

developing the qualities it will need to 

lead their countries in the 21st century; 

and to promote mutual understanding 

between the people of the United States 

and the people of Montenegro and 

Serbia. 

With these goals in mind, the Bureau 

of Educational and Cultural Affairs 

(ECA) is sponsoring this program to 

provide scholarships for secondary 

school students from Montenegro and 

Serbia to spend one academic year in 

the United States, living with U.S. host 

families and attending high school. 

Programmatic activities will introduce 

students to the principles of youth 

leadership, civic education, civil 

society, and community service, as they 

are practiced in the United States. Upon 

the students’ return to Montenegro and 

Serbia, the program will continue to 


rmajette on PRODPC74 with NOTICES