2640 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Notices 

13 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. 

4Nasdaq’s continued listing requirements relating 

to bid price are set forth in Rules 4310(c)(4), 

4320(e)(2)(E)(ii), 4450(a)(5), 4450(b)(4), and 

4450(h)(3) and the related compliance periods are 

set forth in Rules 4310(c)(8)(D), 4320(e)(2)(E)(ii), 

and 4450(e)(2). Under these rules, a security is 

considered deficient if it fails to achieve at least a 

$1 closing bid price for a period of 30 consecutive 

business days. Once deficient, Capital Market 

issuers are provided one automatic 180-day period 

to regain compliance. Thereafter, these issuers can 

receive an additional 180-day compliance period if 

they comply with all Capital Market initial 

inclusion requirements except bid price. Global 

Market issuers are also provided one automatic 180- 

day period to regain compliance, after which they 

can transfer to the Capital Market, if they comply 

with all Capital Market initial inclusion 

requirements except bid price, to take advantage of 

the second 180-day compliance period. A company 

can regain compliance by achieving a $1 closing bid 

price for a minimum of ten consecutive business 

days. 5Nasdaq’s continued listing requirements relating 

to market value of publicly held shares are set forth 

in Rules 4310(c)(7), 4320(e)(5), 4450(a)(2), 

4450(b)(3) and 4450(h)(2) and the related 

compliance periods are set forth in Rules 

4310(c)(8)(B) and 4450(e)(1). Under these rules, a 

security is considered deficient if it fails to achieve 

the minimum market value of publicly held shares 

requirement for a period of 30 consecutive business 

days. Thereafter, companies have a compliance 

period of 90 calendar days to achieve compliance 

by meeting the applicable standard for a minimum 

of ten consecutive business days. 6Securities Exchange Act Release No. 58809 

(October 17, 2008), 73 FR 63222 (October 23, 2008) 

(SR–NASDAQ–2008–082). One comment was 

submitted on this proposal by Alan F. Eisenberg, 

Executive Vice President, the Biotechnology 

Industry Organization. This comment supported the 

suspension and ‘‘any efforts by the Commission and 

NASDAQ to extend [the suspension], as necessary, 

beyond the termination date of January 16, 2009.’’ 

7See, e.g., Securities Exchange Act Release No. 

58588 (September 18, 2008), 73 FR 55174 

(September 24, 2008) (‘‘The Commission is aware 

of the continued potential of sudden and excessive 

fluctuations of securities prices and disruption in 

the functioning of the securities markets that could 

threaten fair and orderly markets. Given the 

importance of confidence in our financial markets 

as a whole, we have also become concerned about 

sudden and unexplained declines in the prices of 

securities. Such price declines can give rise to 

questions about the underlying financial condition 

of an issuer, which in turn can create a crisis of 

confidence without a fundamental underlying basis. 

This crisis of confidence can impair the liquidity 

and ultimate viability of an issuer, with potentially 

broad market consequences.’’). 

8Nasdaq would continue to identify on its Web 

site and in its daily data feed to vendors those 

companies in a compliance period or in the 

hearings process as not satisfying the continued 

listing standards, unless the company regains 

compliance during the suspension. A company 

would continue to be subject to delisting for failure 

to comply with other listing requirements. 

9Nasdaq would not consider the bid price or 

market value of publicly held shares for the period 

before or during the suspension with respect to a 

company that was not yet non-compliant with those 

requirements at the start of the suspension. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.13

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–777 Filed 1–14–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59219; File No. SR– 

NASDAQ–2008–099] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change To Extend the 

Temporary Suspension of the 

Continued Listing Requirements 

Related to Bid Price and Market Value 

of Publicly Held Shares for Listing on 

the Nasdaq Stock Market Through 

April 19, 2009 

January 8, 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 December 

18, 2008, 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. 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 extend the 

temporary suspension of the application 

of the continued inclusion bid price and 

market value of publicly held shares 

requirements for listing on the Nasdaq 

Stock Market through April 19, 2009. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, 

Nasdaq included statements concerning 

the purpose of and basis for the 

proposed rule change and discussed any 

comments it received on the proposed 

rule change. The text of these statements 

may be examined at the places specified 

in Item IV below. Nasdaq has prepared 

summaries, set forth in Sections A, B, 

and C below, of the most significant 

aspects of such statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

On October 16, 2008, Nasdaq filed a 

proposed rule change, which was 

immediately effective, to temporarily 

suspend the bid price 4 and market 

value of publicly held shares 5

continued listing requirements 

otherwise applicable to issuers of 

common stock, preferred stock, 

secondary classes of common stock, 

shares or certificates of beneficial 

interest of trusts, limited partnership 

interests, American Depositary Receipts, 

and their equivalents.6 This suspension 

is currently scheduled to last until 

January 16, 2009, to provide temporary 

relief to companies from the application 

of these requirements during a period in 

which the financial markets face almost 

unprecedented turmoil, resulting in a 

crisis in investor confidence and 

concerns about the proper functioning 

of the securities markets.7

Market conditions have not improved 

since the suspension began and, in fact, 

both the number of securities trading 

below $1 and the number of securities 

trading between $1 and $2 on Nasdaq 

has increased. Nasdaq continues to 

believe that there was no fundamental 

change in the underlying business 

model or prospects for many of these 

companies, and that a decline in general 

investor confidence has resulted in 

depressed pricing for companies that 

otherwise remain suitable for continued 

listing. These same conditions continue 

to make it difficult for companies to 

successfully implement a plan to regain 

compliance with the price or market 

value of publicly held shares tests. 

Given these extraordinary market 

conditions, Nasdaq has determined that 

it is appropriate to continue the 

temporary suspension of the bid price 

and market value of publicly held 

shares requirements for an additional 

three months, until April 19, 2009. 

Under this proposal, companies would 

not be cited for new bid price or market 

value of publicly held shares 

deficiencies during the suspension 

period, and the time allowed to 

companies already in a compliance 

period or in the hearings process for bid 

price or market value of publicly held 

shares deficiencies would remain 

suspended with respect to those 

requirements.8 Following the temporary 

suspension, any new deficiencies with 

the bid price or market value of publicly 

held shares requirements would be 

determined using data starting on April 

20, 2009.9 When the suspension expires, 

companies that were in a compliance 

period as of October 16, 2008, when the 

suspension first began, would receive 

the balance of any pending compliance 


jlentini on PROD1PC65 with NOTICES
Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Notices 2641 

10For example, if a company was 120 days into 

its first 180-day compliance period for a bid price 

deficiency when the suspension first started and the 

company does not regain compliance during the 

suspension, the company would have sixty days 

remaining, starting on April 20, 2009, to regain 

compliance. The company may be eligible for the 

second 180-day compliance period if it satisfies the 

conditions for the second compliance period at the 

conclusion of the first compliance period. 

11As noted above, following the suspension, 

companies presently in the compliance process will 

remain at that same stage of the process. 

12 15 U.S.C. 78f. 

13 15 U.S.C. 78f(b)(5). 

14 15 U.S.C. 78s(b)(3)(A). 

15 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. 16 17 CFR 200.30–3(a)(12). 

periods in effect at the time of the initial 

suspension.10 Similarly, companies that 

were in the Hearings process prior to 

October 16, 2008, would resume in that 

process at the same stage they were in 

when the suspension first went into 

effect. Nasdaq will continue to monitor 

securities to determine if they regain 

compliance during the temporary 

suspension. 

Nasdaq believes that extending the 

temporary suspension will permit 

companies to continue focusing on 

running their businesses, rather than 

satisfying market-based requirements 

that are largely beyond their control in 

the current environment. Moreover, this 

extension will allow investors to buy 

shares of some of these lower-priced 

securities without fear that the company 

will receive a delisting notification or be 

delisted in the very near term.11 Nasdaq 

will continue to monitor market 

conditions and consider whether it is 

appropriate to further extend the 

suspension. 

2. Statutory Basis 

Nasdaq believes that the proposed 

rule change is consistent with the 

provisions of Section 6 of the Act,12 in 

general and with Sections [sic] 6(b)(5) of 

the Act,13 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 remove 

uncertainty regarding the ability of 

companies to remain listed on Nasdaq 

during this especially turbulent market 

environment, 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 

While written comments were not 

solicited about the proposed extension, 

there was one comment submitted by 

the Biotechnology Industry 

Organization on the original suspension 

of the bid price and market value of 

publicly held shares requirements, 

which supported the extension. That 

comment is described in footnote 6, 

above. 

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 14 and Rule 19b– 

4(f)(6) thereunder.15

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–2008–099 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–2008–099. 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–2008–099 and should be 

submitted on or before February 5, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.16

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–778 Filed 1–14–09; 8:45 am] 

BILLING CODE 8011–01–P 


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