[Federal Register Volume 71, Number 152 (Tuesday, August 8, 2006)]
[Notices]
[Pages 45246-45359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6708]



[[Page 45245]]

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Part V





Securities and Exchange Commission





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Applications, Hearings, Determinations, etc.: Nasdaq Stock Market, Inc. 
and NASDAQ Stock Market LLC; Notices

Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / 
Notices

[[Page 45246]]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54240]


In the Matter of the Application of the Nasdaq Stock Market, Inc. 
and the NASDAQ Stock Market LLC for Section 12(b) Registration On 
Behalf of Certain Issuers

July 31, 2006.

I. Introduction

    On January 13, 2006, the Commission approved the application of the 
Nasdaq Stock Market, Inc. (``Nasdaq'') to register one of its 
subsidiaries, the NASDAQ Stock Market LLC (``Nasdaq Exchange''), as a 
national securities exchange.\1\ Currently, companies listed on Nasdaq 
have one or more classes of equity securities registered under Section 
12(g) \2\ of the Securities Exchange Act of 1934 (``Exchange Act''),\3\ 
registered under Section 12(b) of the Exchange Act \4\ for listing on 
another national securities exchange, or exempt from registration 
pursuant to Section 12(g)(2)(B) or 12(g)(2)(G) of the Exchange Act \5\ 
or Rule 12g3-2(b) promulgated under the Exchange Act \6\ as permitted 
under NASD Rules 4310 and 4320. Under Section 12(a) of the Exchange 
Act,\7\ brokers and dealers are prohibited from effecting transactions 
in a security on a national securities exchange unless it has been 
registered under Section 12(b) of the Exchange Act.
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    \1\ See Release No. 34-53128 (January 13, 2006) [71 FR 3550].
    \2\ 15 U.S.C. 78l(g).
    \3\ 15 U.S.C. 78a et seq.
    \4\ 15 U.S.C. 78l(b).
    \5\ 15 U.S.C. 78l(g)(2)(B) or 78l(g)(2)(G).
    \6\ 17 CFR 240.12g3-2(b).
    \7\ 15 U.S.C. 78l(a).
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    Accordingly, absent relief, Nasdaq's transition to the Nasdaq 
Exchange would require each of the companies currently listing 
securities on either the Nasdaq Global Market or Nasdaq Capital Market 
to individually register their Nasdaq-listed securities under Section 
12(b) of the Exchange Act before the Nasdaq Exchange commences 
operations. This process would require each affected company to file a 
registration statement with the Commission or other appropriate 
regulatory agency.\8\ The Nasdaq Exchange would then be required to 
certify to the Commission and other regulators that, with respect to 
each registration statement, the company's securities are approved for 
listing and registration on the Nasdaq Exchange.\9\ The registration 
would become effective 30 days after the Commission's receipt of 
certification from the Nasdaq Exchange or within such shorter period of 
time as the Commission may determine.\10\
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    \8\ Section 12(i) of the Exchange Act requires filings relating 
to certain financial institutions to be made with the Comptroller of 
the Currency, the Board of Governors of the Federal Reserve System, 
the Federal Deposit Insurance Corporation, or the Office of Thrift 
Supervision. 15 U.S.C. 78l(i).
    \9\ See Section 12(d) of the Exchange Act [15 U.S.C. 78l(d)].
    \10\ Id.
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    On behalf of its listed companies, Nasdaq and the Nasdaq Exchange 
have asked for relief with respect to this registration process, 
asserting that it would place an unnecessary cost and administrative 
burden on the listed companies, investors, the agencies that regulate 
the listed companies, and Nasdaq and the Nasdaq Exchange, and would not 
be in the public interest. With respect to the vast majority of its 
listed securities, Nasdaq and the Nasdaq Exchange assert that 
information that would be elicited by registration has already been 
required to be publicly disclosed. Since the vast majority of Nasdaq-
listed companies already have registered their securities under Section 
12 of the Exchange Act \11\ or have been required to file detailed 
public information with the Commission,\12\ the resulting duplicative 
disclosure would not significantly benefit the marketplace or 
investors.
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    \11\ These companies have filed registration statements pursuant 
to Section 12(g) or, in a limited number of cases, Section 12(b) of 
the Exchange Act. A separate Section 12(b) registration statement is 
required with respect to each national securities exchange on which 
a particular class of security is listed. Accordingly, a new 
registration statement on 12(b) will be required by the time the 
Nasdaq Exchange becomes operational, even as to those Nasdaq-listed 
companies that have previously filed 12(b) registration statements.
    \12\ Those Nasdaq-listed companies which have registered under 
the Investment Company Act of 1940 (the ``1940 Act'') have filed 
registration statements with the Commission under the 1940 Act and 
have been required to make periodic filings under the 1940 Act 
identical in form to those required of investment companies that 
have registered their securities under Section 12(b) of the Exchange 
Act. These investment companies are exempt from registration under 
Section 12(g)(2)(B) of the Exchange Act.
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    To ameliorate the cost and administrative burden resulting from the 
filing of individual Exchange Act registration statements that would 
otherwise be required, Nasdaq and the Nasdaq Exchange have submitted a 
letter, dated July 31, 2006, on behalf of certain Nasdaq-listed issuers 
(the ``Issuers'') to the Commission requesting that this letter serve 
as the single application for registration with respect to the listed 
securities of these Issuers, as well as the Nasdaq Exchange's 
certification of such application (the ``Nasdaq Application'').\13\ 
Nasdaq and the Nasdaq Exchange have made a similar request of the Board 
of Governors of the Federal Reserve System, the Federal Deposit 
Insurance Corporation, and the Office of Thrift Supervision.\14\ The 
Nasdaq Application is provided as an attachment to this Order.
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    \13\ See Letter from Edward S. Knight to Nancy M. Morris (July 
31, 2006). For certain of its listed issuers whose securities are 
not currently required to be registered under the Exchange Act, 
Nasdaq and the Nasdaq Exchange have requested additional time for 
these securities to become registered under Section 12(b). That 
portion of the request is being addressed in a separate Order by the 
Commission. See Exchange Act Release No. 34-54241 (July 31, 2006).
    \14\ We understand these agencies will consider the request for 
relief with respect to the companies they oversee pursuant to 
Section 12(i) of the Exchange Act. We further understand that the 
Comptroller of the Currency does not currently oversee any affected 
company pursuant to Section 12(i) of the Exchange Act.
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II. Statutory Standards

    Section 12(a) of the Exchange Act makes it unlawful for an exchange 
member, broker, or dealer to effect any transaction in any security 
(other than an exempted security) on a national securities exchange 
unless a registration is effective with respect to that security on the 
exchange in accordance with the provisions of Section 12 and the rules 
and regulations promulgated under Section 12. Exchange Act Section 
12(b) and related rules prescribe the form and content of the 
application that may be used to register a security on a national 
exchange. However, Section 12(c) \15\ permits the Commission to require 
alternative information in lieu of the informational requirements of 
Section 12(b) if, in the judgment of the Commission, some or all of the 
information required under Section 12(b) is ``inapplicable to any 
specified class or classes of issuers'' and the substitute information 
is of comparable character as the Commission may deem applicable to 
such class of issuers.
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    \15\ 15 U.S.C. 78l(c).
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    Section 12(d) provides that the registration of a security under 
the Exchange Act becomes effective 30 days after the Commission's 
receipt of certification from the national securities exchange that the 
security has been approved for listing and registration on the 
exchange, or within such shorter period of time as the Commission may 
determine.

III. Discussion of NASD Rule 4130 and Opt-Out Process

    To provide notice of its plan to seek the requested relief on 
behalf of the Issuers and to assure sufficient authority

[[Page 45247]]

for Nasdaq and the Nasdaq Exchange to submit the Nasdaq Application to 
the Commission, the NASD proposed a new rule specifically permitting 
Nasdaq and the Nasdaq Exchange to take the contemplated action. The 
Commission approved this rule on April 6, 2006.\16\ NASD Rule 4130 
explicitly authorizes Nasdaq and the Nasdaq Exchange, in connection 
with Nasdaq's transition to a national securities exchange, to file an 
application with the Commission and the Board of Governors of the 
Federal Reserve System, the Federal Deposit Insurance Corporation, and 
the Office of Thrift Supervision to register each Issuer's listed 
securities under Section 12(b) of the Exchange Act and request any 
appropriate regulatory relief from the provisions of Section 12, unless 
the Issuer informs Nasdaq, pursuant to procedures set forth by Nasdaq, 
that it does not want to be included in this process.\17\
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    \16\ See Release No. 34-53606 (April 6, 2006) [71 FR 18790].
    \17\ The text of Rule 4130 reads as follows:
    In connection with The Nasdaq Exchange commencing operations as 
a national securities exchange, each issuer authorizes Nasdaq and 
the Nasdaq Exchange to file an application to register under Section 
12(b) of the Exchange Act any class of the issuer's securities that 
is listed on Nasdaq on the day immediately preceding the day the 
Nasdaq Exchange commences such operations; provided, however, that 
this provision shall not be applicable to any security that the 
issuer informs Nasdaq, pursuant to procedures set forth by Nasdaq, 
should not be so registered. The application to register under 
Section 12(b) of the Exchange Act will be filed with the Commission 
or, for those securities subject to Section 12(i) of the Exchange 
Act, with the appropriate banking regulator specified in Section 
12(i). The authorization in this paragraph includes allowing Nasdaq 
and the Nasdaq Exchange to request any appropriate regulatory relief 
from the provisions of Section 12.
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    Accordingly, prior to filing the Nasdaq Application, Nasdaq 
provided notice of its intention to seek the requested relief.\18\ In 
addition to general notice through the proposed rule filing, Nasdaq 
notified each Issuer, individually, of its plans to submit the request 
and allowed any Issuer that did not wish its securities to be included 
in the request to opt-out of the process.\19\ At the expiration of the 
notice period, no Issuers had elected to opt-out of the requested 
relief.\20\
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    \18\ See Nasdaq Application at 3 and Release No. 34-53362 
(February 24, 2006) [71 FR 10734].
    \19\ See Nasdaq Application at 3. Notice was provided through a 
May 15, 2006 bulletin to Issuers and a May 17, 2006 press release 
requesting Issuers notify Nasdaq by May 30, 2006 if they did not 
wish to participate. The result of an Issuer choosing to opt-out is 
that the Issuer's securities will be ineligible to be listed and 
traded on the Nasdaq Exchange as of its operational date; such 
Issuer would instead trade on the pink sheets or OTC Bulletin Board 
unless it files an individual Section 12(b) registration statement 
on Form 8-A or Form 10, as applicable, in connection with listing on 
the Nasdaq Exchange or another national securities exchange, and 
such registration statement subsequently becomes effective.
    \20\ See Exhibit B to the Nasdaq Application.
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IV. Findings

    Pursuant to Section 12(c) of the Exchange Act, in the judgment of 
the Commission, based on the Nasdaq Application for Section 12(b) 
registration and the representations made therein and in light of the 
recent registration of the Nasdaq Exchange, the Commission will 
consider the Nasdaq Application in lieu of the information otherwise 
required under Section 12(b) of the Exchange Act. In reaching its 
determination, the Commission considered the following:

    (i) In recognition of the unique circumstances discussed above 
in Section I and in the Nasdaq Application, particularly the fact 
that the information to be elicited by registration under Section 12 
of the Exchange Act or, in the case of investment companies 
registered under the 1940 Act, its substantial equivalent, already 
has been required to be made public by the Issuers, it is the 
judgment of the Commission that the Nasdaq Application is sufficient 
for purposes of registration of the securities listed in Exhibit A 
to the Nasdaq Application (the ``Issuer Securities''); \21\
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    \21\ According to the Nasdaq Application, the Issuer Securities 
represent securities: (i) That are listed on Nasdaq immediately 
preceding the date that the Nasdaq Exchange begins operations; (ii) 
that are currently either registered under Section 12(b) or 12(g) of 
the Exchange Act or exempt from Section 12(g) registration pursuant 
to Section 12(g)(2)(B) or 12(g)(2)(G) of the Exchange Act or 
Exchange Act Rule 12g3-2(b); and (iii) that have not been requested 
by the issuer to be opted-out of the Nasdaq Application pursuant to 
the procedures established by Nasdaq as a result of NASD Rule 4130.
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    (ii) Nasdaq and the Nasdaq Exchange have represented to the 
Commission in the Nasdaq Application that, as of the date of this 
Order:
    a. They have conducted the opt-out process as described, 
particularly with respect to notice of the Nasdaq Application to all 
Issuers, generally, pursuant to NASD Rule 4130 and a press release 
and, specifically, to each Issuer through the opt-out option,
    b. That authorization has not been withheld by any Issuer with 
respect to any of the Issuer Securities, and
    c. The Issuer Securities listed in Exhibit A to the Nasdaq 
Application accurately reflect the securities that are to be the 
subject of its request;
    (iii) The Nasdaq Exchange has certified to the Commission in the 
Nasdaq Application that, as of the date of this Order, all of the 
Issuer Securities have been approved by the Nasdaq Exchange for 
listing and registration in accordance with the requirements of 
Section 12(d) of the Exchange Act; and
    (iv) In accordance with Section 12(d) and Rule 12d1-2(a) \22\ of 
the Exchange Act, Nasdaq and the Nasdaq Exchange have requested in 
writing the acceleration of the effective date of the Nasdaq 
Application for Section 12(b) registration of the Issuer Securities 
on the date of this Order.
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    \22\ 17 CFR 249,12d1-2(a).
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V. Conclusion

    The Commission, having reviewed the Nasdaq Application for Section 
12(b) registration of the Issuer Securities and in reliance on the 
representations and certifications made by Nasdaq and the Nasdaq 
Exchange in the Nasdaq Application, has concluded that it is 
appropriate, in the public interest and consistent with the protection 
of investors, to approve the Nasdaq Application and grant the request 
by Nasdaq and the Nasdaq Exchange for registration of the Issuer 
Securities under Section 12(b).
    The Commission recognizes that the use of its authority under 
Section 12(c) of the Exchange Act to consider information other than 
that prescribed by Section 12(b) for purposes of Section 12 
registration is a variation on the customary registration process. As 
noted, however, the Commission believes the special circumstances of 
Nasdaq's transition to a national securities exchange and the existing 
public disclosure requirements applicable to the Issuer Securities 
constitute a unique situation meriting the application of Section 
12(c).
    With respect to the findings and conclusions in this Order, it is 
also to be expressly understood that the Commission has not made, and 
this Order does not constitute, any determination regarding the 
Issuers' compliance with the listing standards of the Nasdaq Exchange 
or of any other exchange, securities association or facility on which 
the Issuers' securities trade, or any Commission rule or regulation, 
other than the Section 12(b) registration requirements as they relate 
to Nasdaq's transition to a national securities exchange. In addition, 
the Commission has not made, and this Order does not constitute, any 
determination regarding the regulation or oversight of Nasdaq or the 
Nasdaq Exchange with respect to the Issuer Securities, other than the 
Section 12(b) registration requirements as they relate to Nasdaq's 
transition to a national securities exchange.
    Accordingly, it is ordered that the Nasdaq Application for Section 
12(b) registration of the Issuer Securities, made by Nasdaq and the 
Nasdaq Exchange on behalf of the Issuers pursuant to NASD Rule 4130, 
be, and hereby is, granted, effective as of July 31, 2006.


[[Page 45248]]


    By the Commission (Chairman Cox and Commissioners Glassman, 
Atkins, Campos and Nazareth).
Nancy M. Morris,
Secretary.
July 31, 2006
Nancy M. Morris, Esq.
Secretary, US Securities and Exchange Commission, 100 F Street, NE, 
Washington, DC 20549

RE: Request for Relief from Sec.  12 of the Securities Exchange Act 
of 1934

    Dear Ms. Morris:
    On January 13, 2006, the Securities and Exchange Commission 
(``SEC'' or ``Commission'') approved the application of The NASDAQ 
Stock Market LLC (``Nasdaq Exchange''), a subsidiary of The Nasdaq 
Stock Market, Inc. (``Nasdaq''), to register under Section 6 of the 
Securities Exchange Act of 1934 (``Act'' or ``Exchange Act'') as a 
national securities exchange.\1\ Nasdaq's transition of its listing 
and trading activities to the Nasdaq Exchange will furehr Congres's 
instruction to promote ``fair competition * * * between exchange 
markets.'' \2\ Absent the relief requested herein, however, Nasdaq's 
transition to a national securities exchange would require 
approximaely 3,200 Nasdaq Global Market \3\ and Capital market 
issuers with securities registered pusuant to the Act, or exempt 
from registration under Section 12(g) of the Act,\4\ to file 
registraton statements \5\ to register those securities under 
Section 12(b) of the Act.\6\
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    \1\ Securities Exchange Act Release No. 53128 (January 13, 
2006), 71 FR 3550 (January 23, 2006) (the ``Exchange Approval 
Order'').
    \2\ Exchange Act Section 11A(a)(1)(C)(ii).
    \3\ Effective July 1, 2006, Nasdaq renamed the Nasdaq National 
Market as the Nasdaq Global Market and created a new segment within 
the Global Market called the Global Select Market. References to the 
Nasdaq Global Market include those securities listed on the Nasdaq 
Global Market and the Nasdaq Global Select Market. See Securities 
Exchange Act Release No. 54071 (June 29, 2006), 71 FR 38922 (July 
10, 2006) (SR-NASD-2006-068); Securities Exchange Act Release No. 
53799 (May 12, 2006), 71 FR 29195 (May 19, 2006) (SR-NASDAQ-2006-
007).
    \4\ 15 U.S.C. 78l(g).
    \5\ Most of these registration statements would be filed with 
the Commission. However, Section 12(i) of the Act requires filings 
relating to certain financial institutions to be made with the 
Comptroller of the Currency, the Board of Governors of the Federal 
Reserve System, the Federal Deposit Insurance Corporation, or the 
Office of Thrift Supervision (collectively, the ``Banking 
Regulators''). 15 U.S.C. 78l(i). Separate requests have been sent to 
the Banking Regulators seeking similar relief for the companies 
registered with them.
    \6\ 15 U.S.C. 78l(b).
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    Engaging in what would essentially be a re-registration process 
for the vast majority of these 3,200 issuers would create a serious 
disruption in the trading of securities on The Nasdaq Stock Market. 
As explained below, the confusion and inevitable administrative 
delay that would accompany such a process for issuers registered 
with the Commission would achieve no material public benefit and 
would place an unnecessary burden on issuers, investors, Nasdaq, the 
Nasdaq Exchange, and the Commission. The Commission can prevent this 
potential disruption by granting the relief requested in this 
letter. Specifically, Nasdaq and the Nasdaq Exchange request that 
this letter serve as: (1) The registration statement under Section 
12(b) for all classes of listed securities of Nasdaq Capital Market 
and Nasdaq Global Market issuers registered with the Commission 
under Sections 12(b) and 12(g), as well as those listed securities 
exempt from registration under Section 12(g)(2)(B) of the Act \7\; 
and (2) the Nasdaq Exchange's certification pursuant to Section 
12(d) of the Act \8\ that these securities are approved for listing 
and registration concurrent with the start of operations of the 
Nasdaq Exchange. Nasdaq and the Nasdaq Exchange also request that 
the Commission issue an exemption from registration applicable to 
issuers that are now exempt from the registration requirements of 
Section 12(g) pursuant to Section 12(g)(2)(G) of the Act \9\ and 
Exchange Act Rule 12g3-2(b)\10 \to allow these companies three years 
from the date the Nasdaq Exchange begins operations to become 
registered under Section 12(b). NASD Rule 4130 specifically permits 
Nasdaq to act on behalf of its issuers in this regard.\11\
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    \7\ 15 U.S.C. 78l(g)(2)(B).
    \8\ 15 U.S.C. 78l(d),
    \9\ 15 U.S.C. 78l(g)(2)(G).
    \10\ 17 CFR 240.12g3-2(b).
    \11\ Rule 4130 permits Nasdaq to act on behalf of its issuers to 
request registration of their listed securities under Section 12(b), 
or seek appropriate regulatory relief from Section 12(b), in 
connection with the transition to the Nasdaq Exchange. See 
Securities Exchange Act Release No. 53606 (April 6, 2006), 71 FR 
18790 (April 12, 2006) (approving SR-NASD-2006-28); Securities 
Exchange Act Release No. 53262 (February 24, 2006), 71 FR 10734 
(March 2, 2006) (providing notice of SR-NASD-2006-28).
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I. Background

    Nasdaq presently is a facility of the National Association of 
Securities Dealers, Inc. (``NASD''), a registered securities 
association, and thus is subject to Section 15A of the Act. On March 
15, 2001, Nasdaq filed an application under Section 6 of the Act for 
registration as a national securities exchange (``Form 1'') with the 
Commission. On August 15, 2005, and September 23, 2005, Nasdaq 
submitted Amendments 4 and 5, respectively, to its Form 1. In 
Amendments 4 and 5 Nasdaq proposed, among other things, a new 
corporate structure whereby Nasdaq would become a holding company 
with the Nasdaq Exchange as one of its subsidiaries. The Commission 
published notice of Amendments 4 and 5 on October 11, 2005.\12\ On 
January 13, 2006, the Nasdaq Exchange submitted Amendment 6 to the 
Form 1 and the Commission approved the Nasdaq Exchange's application 
for registration as a national securities exchange.\13\ On June 30, 
2006, the Commission modified the approval order so that the Nasdaq 
Exchange could begin operations in a phased manner, with operations 
related to trading in Nasdaq-listed securities beginning before 
operations related to trading in securities listed on other national 
securities exchanges.\14\ The Nasdaq Exchange has satisfied the 
conditions expressed in the amended approval order with respect to 
Nasdaq-listed securities and expects to begin operations as a 
national securities exchange for those securities on August 1, 2006.
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    \12\ Securities Exchange Act Release No. 52559 (October 4, 
2005), 70 FR 59097 (October 11, 2005).
    \13\ Exchange Approval Order, supra note 1.
    \14\ Securities Exchange Act Release No. 54085 (June 30, 2006), 
71 FR 38910 (July 10, 2006).
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    Upon operation of the Nasdaq Exchange, issuers listed and traded 
on Nasdaq will instead be listed and traded on the Nasdaq 
Exchange.\15\ Under current NASD rules, a security is eligible for 
listing on Nasdaq if it is registered under the Exchange Act under 
either Section 12(g) or Section 12(b).\16\ In addition, three 
categories of securities exempt from registration under Section 
12(g) are also eligible for listing on Nasdaq. First, a security 
issued by an investment company registered under the Investment 
Company Act of 1940 (the ``1940 Act'') is exempt from registration 
under Section 12(g)(2)(B) of the Act, but is eligible for listing on 
Nasdaq.\17\ Second, a security issued by an insurance company and 
exempt from registration under Section 12(g) pursuant to Section 
12(g)(2)(G) is also eligible for listing.\18 \Finally, the 
securities of certain foreign issuers are eligible for inclusion in 
Nasdaq even though they are exempt from registration pursuant to 
Rule 12g3-2(b) under the Exchange Act.\19\ Once the Nasdaq Exchange 
begins operations, issuers will need instead to have been registered 
under Section 12(b) so that brokers and dealers may effect 
transactions in these securities on the Nasdaq Exchange consistent 
with Section 12(a) of the Act.\20 \
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    \15\ This includes securities listed on the Nasdaq Capital 
Market and the Nasdaq Global Market. Note that the NASD has modified 
its Plan of Allocation and Delegation of Functions by NASD to 
Subsidiaries and certain NASD rules to reflect NASD's direct 
authority for the activities related to the OTC Bulletin Board, 
rather than the prior delegation of such authority to Nasdaq. As 
such, this application does not address the OTC Bulletin Board and 
securities quoted on the OTC Bulletin Board will not be listed on 
the Nasdaq Exchange.
    \16\ NASD Rules 4310(a)(1) and (2) and 4320(a).
    \17\ NASD Rule 4310(a)(4).
    \18\ NASD Rule 4310(a)(3).
    \19\ NASD Rule 4320(c).
    \20\ 15 U.S.C. 78l(a).
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    In contemplation of this request, Nasdaq has adopted Rule 4130, 
which specifically permits Nasdaq to act on behalf of its issuers to 
request registration of their listed securities under Section 12(b), 
or seek appropriate regulatory relief from Section 12(b), in 
connection with the transition to the Nasdaq Exchange.\21\ In 
proposing this rule change, Nasdaq noted that it anticipated making 
the requests contained herein and the process by which it would 
provide notice to each issuer and would allow any issuer that does 
not wish to register under Section 12(b) the ability to opt-out of 
Nasdaq's request.\22\ Nasdaq provided that notice by issuing a

[[Page 45249]]

bulletin to issuers \23\ on May 15, 2006, and by issuing a press 
release \24\ on May 17, 2006.
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    \21\ Securities Exchange Act Release No. 53606, supra note 11.
    \22\ Securities Exchange Act Release No. 53262, supra note 11.
    \23\ See ``Impact of NASDAQ Exchange Registration on Listed 
Companies'' available at: http;//www.nasdaq.com/about/Exchange_Bulletin_051506.pdf.
    \24\ See ``NASDAQ Notifies Listed Companies About Transition To 
Exchange Status'' available at: http://www.nasdaq.com/newsroom/news/
pr2006/ne--section06--066.stm
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    As of July 31, 2006, Nasdaq lists 2,776 securities on the Global 
Market (including 1,254 securities on the Nasdaq Global Select 
Market) and 580 securities on the Capital Market.\25\ These 
securities can be categorized as follows: 3,257 securities are 
registered with the Commission under Section 12(g); 40 securities 
are also listed on a national securities exchange and are registered 
with the Commission under Section 12(b); 17 investment company 
issuers' securities are exempt from registration under Section 
12(g)(2)(B); four insurance company issuers' securities are exempt 
from Section 12(g) registration under Section 12(g)(2)(G); nine 
foreign private issuers' securities are exempt from Section 12(g) 
registration under Rule 12g3-2(b); and 29 bank and savings 
association issuers' securities are registered under Section 12(g) 
with other regulatory agencies pursuant to Section 12(i).\26\
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    \25\ Some issuers list more than one security on Nasdaq.
    \26\ To assist the Commission with this request, we have 
attached lists of those securities registered with the Commission or 
exempt from registration. Exhibit A contains a list of those 
securities already registered with the Commission under Sections 
12(b) or 12(g) and those securities exempt from registration under 
Rule 12(g)(2)(B), that have not opted out from this request as 
provided for in Rule 4130. Exhibit B contains a list of those 
securities that have opted out from this request. Exhibit C contains 
a list of those securities that are exempt from registration under 
Section 12(g) pursuant to Section 12(g)(2)(G) or Rule 12g3-2(b).
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II. Basis for Relief Sought and Anticipated Benefits

A. Securities Already Registered Under Section 12(g) and 12(b)

    Absent relief, the issuers of approximately 3,297 Nasdaq Global 
Market and Capital Market securities that are registered with the 
Commission under Sections 12(g) and 12(b) will be required to file a 
registration statement to register their securities under Section 
12(b) on the Nasdaq Exchange once Nasdaq begins operating as a 
national securities exchange. Nasdaq believes that under the 
circumstances, this registration process would be confusing and 
would place an unnecessary cost and administrative burden on Nasdaq, 
the Nasdaq Exchange, the Commission, and issuers and would not be in 
the public interest. Specifically, each of those issuers would be 
required to file with the Commission and with the Nasdaq Exchange a 
new Exchange Act registration statement describing the securities to 
be registered along with all necessary exhibits. The Nasdaq Exchange 
would then be required to certify to the Commission that each 
issuer's securities are approved for listing and registration. This 
process would have to be coordinated to minimize disruptions to 
trading in issuer securities, with the real possibility of some 
securities experiencing trading gaps during the transition. Such a 
daunting and time-sensitive task--which creates no significant 
identifiable benefit to the public creates the unnecessary risk of 
administrative errors by the issuers, the Nasdaq Exchange, or the 
Commission that could inadvertently delay or otherwise adversely 
impact the registration and trading of securities on the new 
exchange. The public interest is served by having exchanges run 
smoothly and efficiently, and the requested relief would achieve 
that purpose.
    The additional registration process would not result in any 
significant benefit to the marketplace or investors because they 
would not receive any additional information regarding the security. 
Each Nasdaq Global Market and Capital Market issuer in this category 
has already filed an Exchange Act registration statement with the 
Commission to register the class of securities under Section 12 of 
the Act. Those issuers with securities registered under Section 
12(g) were required to file a registration statement that contained 
``such information and documents as the Commission may specify 
comparable to that which is required in an application to register a 
security pursuant to [Section 12(b)].'' \27\
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    \27\ Section 12(g)(1) of the Act, 15 U.S.C. 78l(g)(1).
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    There are also no relevant differences in the regulatory 
requirements for securities registered under Sections 12(b) and 
12(g) that would negatively impact investors. For example, issuers 
with securities registered under Section 12(g) must, like issuers 
with securities registered under Section 12(b), file periodic and 
other reports with the Commission under Section 13 of the Act, 
comply with the proxy requirements under Section 14 of the Act, and 
adhere to the requirements of the Williams Act. Because securities 
registered under Section 12(b) and Section 12(g) are already treated 
in a nearly identical fashion, requiring Nasdaq issuers to re-
register their securities would not result in any material benefit 
to the marketplace or investors.
    The Commission would be acting well within its authority in 
granting the relief requested. Congress has provided specific 
authorization under Section 12(c) of the Act,\28 \which allows the 
submission of different information than that required under Section 
12(b).
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    \28\ 15 U.S.C. 78l(c).
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    Accordingly, Nasdaq and the Nasdaq Exchange request that this 
letter serve as: (i) The registration statement under Section 12(b) 
for all classes of listed securities of Nasdaq Global Market and 
Capital Market issuers registered with the Commission under Sections 
12(b) and 12(g) and included in Exhibit A; and (ii) the Nasdaq 
Exchange's certification pursuant to Section 12(d) of the Act that 
these securities are approved for listing and registration, 
concurrent with the start of operations of the Nasdaq Exchange. 
Nasdaq and the Nasdaq Exchange further request that the Commission 
accelerate the effective date of this application for Section 12(b) 
registration to July 31, 2006.
    This action would be in the public's interest and consistent 
with the protection of investors because it would prevent the 
imposition of a significant administrative burden on issuers, the 
Commission, and others without weakening any of the protections 
afforded to investors under the federal securities laws.\29\
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    \29\ This reclassification would apply only to those issuers 
listed on Nasdaq when it becomes a national securities exchange and 
not to issuers approved for listing on Nasdaq afterwards. Such 
later-listed issuers would be required to file a registration 
statement with the Commission to register their securities under 
Section 12(b) and Nasdaq would be required separately to certify 
such registration statements. In addition, this reclassification 
would not apply to the securities of any issuer that has opted-out 
of such treatment, pursuant to NASD Rule 4130. See SR-NASD-2006-28.
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B. Securities Exempt From Registration Under Section 12(g)(2)(B)

    Nasdaq currently lists 17 investment companies whose securities 
are exempted from Section 12(g) registration pursuant to Section 
12(g)(2)(B) of the Act. No purpose would be served by requiring 
these issuers to file registration statements under Section 12(b) 
because these companies already are and would remain subject to 
registration and reporting requirements under the 1940 Act rather 
than Section 13 of the Act.\30\ The Commission's rules clearly 
contemplate that disclosure under the 1940 Act satisfies the 
disclosure required by the Exchange Act. In particular, each 
registered investment company has filed a registration statement 
with the Commission under the 1940 Act and has been required to make 
periodic filings under the 1940 Act identical in form to those 
required of investment companies that have registered their 
securities under Section 12(b) of the Act.\31\
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    \30\ Registered investment companies file annual and semiannual 
reports on Forms N-CSR and N-SAR, rather than on Forms 10-K and 10-
Q, even if registered under the Exchange Act. See General 
Instruction A. to Form N-CSR, General Instruction A. to Form 10-K, 
and Exchange Act Rules 13a-11(b) and 13a-13(b). Registered 
investment companies are also subject to proxy regulation under Rule 
20a-1 of the 1940 Act. See also Item 22 of Schedule 14A.
    \31\ Under Exchange Act Rule 12g-2, the Commission already has 
made provision for these companies to be deemed registered under the 
Exchange Act without the need for a filing. That relief is automatic 
upon the termination of the issuer's registration under the 1940 
Act. Given that relief, it would make no sense to impose a filing 
requirement when the investment company has maintained, rather than 
terminated, its registration under the 1940 Act.
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    As such, Nasdaq and the Nasdaq Exchange request that these 
issuers be treated in the same manner as issuers with securities 
registered under Sections 12(b) or 12(g) of the Act and that this 
letter serve as: (i) The registration statement under Section 12(b) 
for all classes of listed securities of Nasdaq Global Market and 
Capital Market issuers exempt from Section 12(g) registration 
pursuant to Section 12(g)(2)(B) and included in Exhibit A; and (ii) 
the Nasdaq Exchange's certification pursuant to Section 12(d) of the 
Act that these securities are approved for listing and registration, 
concurrent with the start of operations of the Nasdaq Exchange. 
Nasdaq and the Nasdaq Exchange further

[[Page 45250]]

request that the Commission accelerate the effective date of this 
application for Section 12(b) registration to July 31, 2006.
    This action would be in the public's interest and consistent 
with the protection of investors because it would prevent the 
imposition of a significant administrative burden on issuers, the 
Commission, and others without weakening any of the protections 
afforded to investors under the federal securities laws.\32\
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    \32\ As noted in footnote 29, supra, this reclassification would 
apply only to those issuers listed on Nasdaq when it becomes a 
national securities exchange that have not opted-out of such 
treatment pursuant to NASD Rule 4130.
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C. Other Securities Exempt From Registration Under Section 12(g)

    As described above, Nasdaq lists 13 securities--out of more than 
3,300--that are otherwise exempt from registration under Section 
12(g). The Nasdaq Exchange will operate in all relevant, material 
respects just as Nasdaq operates today.\33\ In fact, while as early 
as 1983 the Commission recognized that ``trading on [Nasdaq] is 
substantially the same as trading on an exchange,'' \34\ the 
Commission has nonetheless permitted securities of these exempt 
issuers to trade on Nasdaq.
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    \33\ The primary difference in market structure that Nasdaq 
contemplates is the establishment of a holding company structure 
under which Nasdaq would own the Nasdaq Exchange, which would 
execute quotes and orders in accordance with a strict price-time 
priority algorithm.
    \34\ Securities Act Release No. 6493 (October 14, 1983) (``Rule 
12g3-2(b) Amendments'').
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    Section 36 of the Act \35\ grants the Commission broad authority 
to make exemptions to any part of the Act when ``such exemption is 
necessary or appropriate in the public interest, and is consistent 
with the protection of investors.'' Granting a temporary 
continuation of an exemption from registration is ``necessary or 
appropriate in the public interest'' and is ``consistent with the 
protection of investors.'' This exemption for a transitional period 
would provide issuers that have traded on Nasdaq without incident 
for many years with sufficient time to undertake Exchange Act 
registration requirements and to make an orderly transition to the 
Nasdaq Exchange and therefore is in the public interest. The 
Commission has used its authority in the past to resolve 
administrative hurdles for complex transactions and to relieve 
unnecessary administrative burdens. Finally, given that these 
securities have traded on Nasdaq pursuant to an exemption for an 
extended period of time, the continuation of a similar exemption for 
a limited time should not raise any new concerns regarding the 
protection of investors.
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    \35\ 15 U.S.C. 78mm.
---------------------------------------------------------------------------

    Forcing Section 12(g) exempt issuers to immediately register 
would be inequitable and wholly unrelated to any act or failure to 
act by these issuers. In the absence of exemptive relief, each of 
the Section 12(g) exempt issuers would be required to prepare and 
file a registration statement on Form 10 or 20-F. Foreign issuers 
would also have to restate or reconcile their financial statements 
to U.S. generally accepted accounting principles (``U.S. GAAP''). 
But it is Nasdaq's becoming an exchange rather than any affirmative 
act by these exempt issuers that would trigger the imposition of 
this registration requirement. Companies that list on the Nasdaq 
Exchange after it begins operations could be required to meet all 
the registration requirements applicable to an exchange listing 
without disrupting an existing market in those securities. But for 
those companies already listed, requiring immediate registration is 
potentially disruptive and unfair. The mere fact of Nasdaq's 
conversion to an exchange should not adversely impact these 
companies or their investors.
    Thus, Nasdaq and the Nasdaq Exchange request that the Commission 
temporarily continue the exemption from registration for the 
following classes of Nasdaq-listed issuers. In connection with this 
request, the Nasdaq Exchange represents that it will continue to 
monitor these companies in the same manner Nasdaq does, to assure 
compliance with all applicable listing requirements.

1. Insurance Companies

    The Commission need not immediately impose registration 
requirements on the four insurance companies listed on Nasdaq but 
exempt from Section 12(g) registration.\36\ These issuers have not 
taken any action on their own to trigger a registration requirement 
and the additional reporting requirements required by such 
registration. In fact, if the Commission determines not to 
temporarily continue these companies' exemptions and they choose to 
delist rather than register, investors would be harmed by the 
potential loss of a liquid trading market. As such, Nasdaq requests 
that the Commission grant an exemption for the securities of these 
insurance companies (identified on Exhibit C) from the requirements 
of Sections 12(a) and 12(b) with respect to the trading of these 
securities on the Nasdaq Exchange for a three-year period from the 
date the Nasdaq Exchange begins to operate as an exchange, provided 
these companies continue to comply with the requirements of Section 
12(g)(2)(G) of the Act and the applicable requirements for continued 
listing on the Nasdaq Exchange. This transitional exemption will 
permit these issuers to complete the registration process without 
undue burden.
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    \36\ Pursuant to Section 12(g)(2)(G) of the Act, these issuers 
generally must file an annual statement with the Commissioner of 
Insurance of their domiciliary state and must be subject to 
regulation by their domiciliary state of proxies, consents, or 
authorizations.
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2. Foreign Private Issuers

    There are nine foreign issuers that trade on The Nasdaq Capital 
Market pursuant to the ``grandfathering'' exemption of Rule 12g3-
2(b).\37\ This exemption originated in 1983, when the Commission 
first required foreign private issuers whose securities were trading 
on Nasdaq to be registered. Prior to that time, a foreign private 
issuer whose securities were not trading on a national securities 
exchange was exempt from registration where the foreign issuer did 
not voluntarily enter the United States markets by, for example, 
conducting a public offering or listing on an exchange. In 1983 the 
Commission amended Rule 12g3-2(b) to deny the exemption to non-U.S. 
issuers that voluntarily listed on Nasdaq. In order not to disrupt 
the trading of these issuers, however, the Commission grandfathered 
in all non-Canadian foreign issuers, allowing those companies to 
continue to trade on Nasdaq without registration under the Exchange 
Act.\38\ In doing so, the Commission heeded the concerns of 
commenters that many foreign issuers would withdraw from Nasdaq, 
rather than register, leaving the pink sheets as the only source of 
trading information related to these companies and resulting in 
increased price spreads, a decrease in information, price quotes not 
carried in newspapers, less liquid markets and fewer institutions in 
the market, absence of NASD surveillance, and delays in execution of 
transfers.\39\
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    \37\ These issuers are not eligible for listing on the Nasdaq 
Global Market, nor are they subject to the Global Market listing 
requirements.
    \38\ Exchange Act Rule 12g3-2(b). The exemption is maintained by 
submitting the issuer's home country reports to the Commission.
    \39\ Rule 12g3-2(b) Amendments, supra note 34. These factors, 
according to one estimate, would cause prices to drop 20 percent. 
Id.
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    The same considerations that compelled that treatment of foreign 
issuers in 1983 are relevant to the relief requested today. These 
issuers have not acted to jeopardize their ability to trade on 
Nasdaq or Rule 12g3-2(b) exempt status. If forced to immediately 
register their securities, a significant number of these issuers may 
delist rather than register, thereby relegating the U.S. investors 
in those foreign issuers to potentially less liquid and transparent 
markets.
    For these reasons, the Nasdaq Exchange's registration as an 
exchange should not force these companies to immediately register or 
delist.\40\ Nasdaq and the Nasdaq Exchange therefore request that 
the Commission grant an exemption for those securities included in 
Exhibit C that are exempt from Section 12(g) registration under Rule 
12g3-2(b) from the requirements of Sections 12(a) and 12(b) with 
respect to the trading of these securities on the Nasdaq Exchange 
for a three-year period from the date the Nasdaq Exchange begins to 
operate as an exchange, provided the issuers continue to comply with 
the requirements of Rule 12g3-2(b) and the applicable requirements 
for continued listing on the Nasdaq Exchange. This transitional 
exemption will permit these issuers to complete the registration 
process without undue burden.\41\
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    \40\ One exempt foreign issuer, Nissan Motor Co., Ltd., 
submitted a comment letter to the Commission in connection with 
Nasdaq's application to become an exchange, requesting that the Rule 
12g3-2(b) grandfathering be allowed to continue indefinitely, or, in 
the alternative, that a reasonable transition period be allowed. See 
footnote 208 to the Exchange Approval Order, supra, note 1.
    \41\ Nasdaq notes that the proposed three-year period is 
consistent with the time-line the Commission has set forth to 
eliminate the requirement for foreign private issuers to reconcile 
financial statements prepared according to International Financial 
Reporting Standards to US GAAP. See SEC Press Release 2006-17, 
available at: http://www.sec.gov/news/press/2006-17.htm.

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[[Page 45251]]

III. Conclusion

    The relief requested above is in the public interest because it 
will ensure the continued smooth operation of this market 
immediately from the time the Nasdaq Exchange begins operations as 
an exchange and avoid confusion and a number of potentially 
disruptive administrative hurdles. The relief is necessary and 
appropriate to avoid the disruption that could occur if members, 
brokers, and dealers were prohibited from effecting transactions in 
Nasdaq securities due to the lack of an effective registration once 
the Nasdaq Exchange begins operating as a registered exchange.
    The Commission has specific authority provided by Section 12(c) 
to effect the relief requested with respect to those securities 
already registered under Section 12(b) or 12(g) and those securities 
exempt from Section 12(g) registration pursuant to Section 
12(g)(2)(B). Further, the Commission has general exemptive authority 
pursuant to Section 36 of the Act and Rule 0-12 thereunder, in 
pertinent part, to exempt any person, security, or transaction, or 
any class or classes of persons, securities, or transactions, from 
any provision or provisions of this title or of any rule or 
regulation thereunder, to the extent that such exemption is 
necessary or appropriate in the public interest, and is consistent 
with the protection of investors. The unique facts surrounding 
Nasdaq's transition to a national securities exchange provide ample 
justification for the Commission to exercise its authority under 
Section 36 under the circumstances described in this letter.
    If you have any questions concerning the foregoing you may 
contact the undersigned at (301) 978-8480, Arnold Golub at (301) 
978-8075 or John Yetter at (301) 978-8497.
    Sincerely yours, Edward S. Knight
    Exhibit A: List of securities whose registration will be 
transferred to Section 12(b)
    Exhibit B: List of securities of issuers that have elected to 
opt-out of requested relief
    Exhibit C: List of securities exempt from Section 12(g) 
registration under Section 12(g)(2)(G) and Rule 12g3-2(b)

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[FR Doc. 06-6708 Filed 8-7-06; 8:45 am]
BILLING CODE 8010-01-C