6186 Federal Register / Vol. 74, No. 23 / Thursday, February 5, 2009 / Notices 

13 17 CFR 200.30–3(a)(12). 

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. 

All submissions should refer to File 

Number SR–BX–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 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–BX– 

2009–002 and should be submitted on 

or before February 26, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.13

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–2428 Filed 2–4–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59318; File No. SR– 

NASDAQ–2009–003] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing and Immediate Effectiveness of 

a Proposed Rule Change To Modify 

Nasdaq’s Listing Requirements 

Related to the Distribution of Annual 

Reports 

January 29, 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 

15, 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 Rules 

4350(b)(1)(A) and 4360(b)(1), which 

relate to the distribution of a listed 

issuer’s annual report. 

The text of the proposed rule change 

is below. Proposed new language is 

italicized; proposed deletions are in 

brackets.4

4350. Qualitative Listing Requirements 

for Nasdaq Issuers Except for Limited 

Partnerships 

(a) No change. 

(b) Distribution of Annual and Interim 

Reports 

(1)(A) Each issuer shall make 

available to shareholders of such 

securities an annual report containing 

audited financial statements of the 

company and its subsidiaries, which, for 

example, may be on Form 10–K, 20–F, 

40–F or N–CSR. An issuer may comply 

with this requirement either: 

(i) By mailing the report to 

shareholders[,]; or 

(ii) By satisfying the requirements for 

furnishing an annual report contained 

in Exchange Act Rule 14a–16; or 

(iii) by posting the annual report to 

shareholders on or through the 

company’s Web site (or, in the case of 

an issuer that is an investment company 

that does not maintain its own Web site, 

on a website that the issuer is allowed 

to use to satisfy the Web site posting 

requirement in Exchange Act Rule 16a– 

3(k)), along with a prominent 

undertaking in the English language to 

provide shareholders, upon request, a 

hard copy of the company’s annual 

report free of charge. An issuer that 

chooses to satisfy this requirement [via 

a Web site posting] pursuant to this 

paragraph (iii) must, simultaneous with 

this posting, issue a press release stating 

that its annual report has been filed 

with the Commission (or other 

appropriate regulatory authority). This 

press release must also state that the 

annual report is available on the 

company’s Web site and include the 

Web site address and that shareholders 

may receive a hard copy free of charge 

upon request. An issuer must provide 

such hard copies within a reasonable 

period of time following the request. 

(B) No change. 

(2)–(4) No change. 

(c)–(n) No change. 

* * * * * 

4360. Qualitative Listing Requirements 

for Nasdaq Issuers That Are Limited 

Partnerships 

(a) No change. 

(b) Distribution of Annual and Interim 

Reports 

(1) Each issuer that is a limited 

partnership shall distribute to limited 

partners copies of an annual report 

containing audited financial statements 

of the limited partnership. The report 

shall be distributed to limited partners 

within a reasonable period of time after 

the end of the limited partnership’s 

fiscal year end and shall be filed with 

Nasdaq at the time it is distributed to 

limited partners. A limited partnership 

may comply with this requirement 

either: 

(A) By mailing the report to the 

limited partners; or 

(B) By satisfying the requirements for 

furnishing an annual report contained 

in Exchange Act Rule 14a–16; or 

(C) By posting the annual report on or 

through the limited partnership’s Web 

site, along with a prominent 

undertaking in the English language to 

provide limited partners, upon request, 

a hard copy of the partnership’s annual 

report free of charge. A limited 

partnership that chooses to satisfy this 

requirement pursuant to this paragraph 

(C) must, simultaneous with this 

posting, issue a press release stating that 

its annual report has been filed with the 

Commission (or other appropriate 

regulatory authority). This press release 

must also state that the annual report is 

available on the limited partnership’s 

Web site and include the Web site 

address and that limited partners may 

receive a hard copy free of charge upon 

request. A limited partnership must 

provide such hard copies within a 

reasonable period of time following the 

request. 

(2) No change. 

(c)–(m) No change. 

* * * * * 


rwilkins on PROD1PC63 with NOTICES
Federal Register / Vol. 74, No. 23 / Thursday, February 5, 2009 / Notices 6187 

5 17 CFR 240.14a–16. 

6 15 U.S.C. 78f. 

7 15 U.S.C. 78f(b)(5). 

8 15 U.S.C. 78s(b)(3)(A). 

9 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 satisfied this requirement. 

10 17 CFR 240.19b–4(f)(6). 

11 17 CFR 240.19b–4(f)(6)(iii). 

12See Securities Exchange Act Release No. 59123 

(December 19, 2008), 73 FR 7991 (December 30, 

2008) (SR–NYSE–2008–128). 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, 

Nasdaq included statements concerning 

the purpose of and basis for the 

proposed rule change and discussed any 

comments it received on the proposed 

rule change. The text of these statements 

may be examined at the places specified 

in Item IV below. Nasdaq has prepared 

summaries, set forth in Sections A, B, 

and C below, of the most significant 

aspects of such statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

Nasdaq is proposing to modify Rule 

4350(b)(1)(A), which relates to the 

distribution of a company’s annual 

report. At present, the Rule requires that 

a company either: (i) Distribute a 

physical copy of its annual report to 

shareholders, or (ii) issue a press release 

announcing the filing of its annual 

report and the availability of that report 

on the company’s Web site or upon 

request. Nasdaq proposes to maintain 

these two alternatives, but proposes to 

also allow a company to satisfy this 

requirement by following the 

requirements related to ‘‘Internet 

Availability of Proxy Materials’’ 

contained in the Commission’s Rule 

14a–16.5 Nasdaq believes that accepting 

compliance with the comparable 

Commission requirement to furnish an 

annual report will ease the compliance 

burden on companies while continuing 

to assure that this information is 

available to shareholders. In addition, 

Nasdaq believes that maintaining the 

requirement to issue a press release 

when relying on the existing alternative 

will allow companies that are not 

subject to the Commission’s proxy rules 

to continue to take advantage of 

technology to satisfy the requirement to 

distribute their annual report. 

Nasdaq is also proposing to modify 

Rule 4360(b)(1) to add the manner in 

which a limited partnership may satisfy 

the requirement to deliver an annual 

report. Presently, this rule is silent as to 

how the requirement can be satisfied, 

but Nasdaq believes that limited 

partnerships can comply in the same 

manner as described in Rule 

4350(b)(1)(A). As such, the addition 

would clarify that a limited partnerships 

[sic] must satisfy the requirement in the 

same way as other listed issuers, 

although Rule 4360(b)(1) would have 

non-substantive differences from Rule 

4350(b)(1) to reflect its applicability to 

partnerships (instead of corporations), 

which are held by limited partners 

(instead of shareholders). Nasdaq notes 

that pursuant to Rule 4360(e), a limited 

partnership is only required to hold 

annual meetings if required by statute or 

regulation in the state in which the 

limited partnership is formed or doing 

business or by the terms of the 

partnership’s limited partnership 

agreement. As such, limited 

partnerships frequently will not hold 

meetings or solicit proxies, and 

therefore would not be subject to the 

Commission’s proxy rules, but could 

still satisfy the requirement to deliver 

the annual report through the 

alternatives described in the proposed 

rule. 

2. Statutory Basis 

Nasdaq believes that the proposed 

rule change is consistent with the 

provisions of Section 6 of the Act,6 in 

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

Act,7 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 is designed to 

facilitate compliance with Nasdaq rules 

by aligning Nasdaq’s disclosure 

requirements with those of the 

Commission. 

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 8 and Rule 19b– 

4(f)(6) thereunder.9

A proposed rule change filed 

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

Act 10 normally does not become 

operative for 30 days after the date of its 

filing. However, Rule 19b–4(f)(6)(iii) 11

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. In 

making this determination, the 

Commission notes that the NYSE 

recently adopted a substantially similar 

listing requirement governing the 

distribution of annual reports,12 and the 

Commission believes that the Nasdaq’s 

proposed rule change raises no new 

regulatory issues. The Commission also 

notes that the NYSE’s proposal was 

subject to full notice and comment, and 

the Commission received no comments 

on the NYSE’s rule proposal. In 

addition, the Commission believes that 

waiving the 30-day operative delay will 

immediately give issuers that have just 

filed, or are about to file, their annual 

reports with the Commission the option 

to comply with Nasdaq’s distribution of 

annual reports requirement by satisfying 

the requirements for furnishing an 

annual report contained in Rule 14a–16 

under the Act. The Commission also 

believes that it is consistent with the 


rwilkins on PROD1PC63 with NOTICES
6188 Federal Register / Vol. 74, No. 23 / Thursday, February 5, 2009 / Notices 

13For 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). 

14 17 CFR 200.30–3(a)(12). 

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

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4See Securities Exchange Act Release No. 59281 

(January 22, 2008) 74 FR 5014 (January 28, 2009) 

(SR–NYSE–2008–120) and Securities Exchange Act 

Release No. 59282 (January 22, 2009), 74 FR 5009 

(January 28, 2009) (SR–NYSE–2008–119). 

protection of investors and the public 

interest to allow limited partnerships to 

distribute annual reports to their limited 

partners under the same terms and 

conditions as Nasdaq’s other listed 

operating companies. The Commission 

believes that waiving the 30-day 

operative delay for limited partnerships 

will also allow these partnerships who 

have just filed, or are about to file, their 

annual reports with the Commission, to 

immediately take advantage of the same 

means of distribution under Nasdaq 

rules that are available for any other 

operating company. For these reasons, 

the Commission designates that the 

proposed rule change become operative 

immediately upon filing.13

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, 

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–2009–003 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–2009–003. 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–2009–003 and should be 

submitted on or before February 26, 

2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.14

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–2427 Filed 2–4–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59327; File No. SR–NYSE– 

2009–09] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change Implementing 

an Equity Transaction Fee for Shares 

Executed on or Through the New York 

Block Exchange Effective Upon Filing 

With the Commission 

January 30, 2009. 

Pursuant to Section 19(b)(1) 1 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’) 2 and Rule 19b–4 thereunder,3

notice is hereby given that, on January 

28, 2009, New York Stock Exchange 

LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (the ‘‘Commission’’) the 

proposed rule change as described in 

Items I, II, and III below, which Items 

have been prepared by the selfregulatory organization. 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 

The Exchange proposes to implement 

an equity transaction fee effective 

January 29, 2009, for shares executed on 

the New York Block Exchange SM

(‘‘NYBX’’ or the ‘‘Facility’’).4 The 

Exchange will charge each Member 

Organization $.0025 per share executed 

on the NYBX. 

The text of the proposed rule change 

is available at http://www.nyse.com, the 

Exchange, and the Commission’s Public 

Reference Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

self-regulatory organization 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 those statements may be examined at 

the places specified in Item IV below. 

The Exchange has prepared summaries, 

set forth in sections A, B, and C below, 

of the most significant parts of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and the 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange proposes to implement 

an equity transaction fee for executions 

on or through the New York Block 

Exchange system with effect from the 

scheduled launch date of January 29, 

2009. The NYBX will be an electronic 

facility of the Exchange to provide for 

the continuous matching and execution 

of securities listed on the NYSE of all 

non-displayed orders with the aggregate 

of all displayed and non-displayed 

orders of the NYSE Display Book®

(‘‘Display Book’’ or ‘‘DBK’’) while also 

considering protected quotations of all 

automated trading centers (‘‘away 

markets’’). The proposed transactional 

fee of $.0025 per executed share will be 

charged to both the buyer(s) and 

seller(s) of the executed shares. The fee 

will be charged for all executions of 

NYBX orders, including those NYBX 

executions that take place in the DBK or 


rwilkins on PROD1PC63 with NOTICES