[Federal Register: October 1, 2008 (Volume 73, Number 191)]
[Notices]
[Page 57188-57190]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01oc08-140]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-58638; File No. SR-NASDAQ-2008-076]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Relating to Nasdaq's PORTAL Market
September 24, 2008.
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 September 19, 2008, The NASDAQ Stock Market LLC (``Nasdaq'') filed
with the Securities and Exchange Commission (``Commission'' or ``SEC'')
the proposed rule change as described in Items I, II, and III below,
which Items have been prepared by Nasdaq. Nasdaq has designated the
proposed rule change as constituting a non-controversial rule change
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.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change
The NASDAQ Stock Market LLC (``Nasdaq'') is filing with the
Securities and Exchange Commission (``Commission'') a proposed rule
change to: (1) Cease operation, as a self-regulatory organization, of
Nasdaq's electronic platform for the quoting and trading of restricted
equity securities designated for inclusion in The PORTAL[supreg] Market
(``PORTAL'' or the ``PORTAL Market''); and (2) file, pursuant to Nasdaq
Rule 2140, for Nasdaq to (a) acquire a minority ownership interest in a
Delaware limited liability company to be known as The PORTAL Alliance
LLC (the ``Alliance'') that would, in turn, own and operate an open
electronic platform for the posting of indicative quotations and
negotiation of transactions in equity securities designated as PORTAL
securities and (b) enter into an agreement to operate the platform on
behalf of the Alliance. Other members of the Alliance would include
certain Nasdaq members or their affiliates. The text of the proposed
amendment to the Nasdaq PORTAL Rules is below. Proposed new language is
underlined, proposed deletions are in brackets.
The text of the proposed rule change is below. Proposed new
language is in italics; proposed deletions are in brackets.\4\
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\4\ Changes are marked to the rule text that appears in the
electronic Nasdaq Manual found at http://wallstreet.cch.com/nasdaq.
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* * * * *
6501 Definitions
For purposes of the PORTAL[supreg] Rules, unless the context
requires otherwise:
(a)-(e) No Change.
(f) The term ``PORTAL security'' or ``PORTAL securities'' shall
mean a security that is currently designated [and authorized for
inclusion in the] as a PORTAL security [Market] by Nasdaq pursuant
to the Rule 6500 Series.
(g) The term ``PORTAL Market'' or ``System'' shall mean the
system for the quotation, negotiation, execution and automated trade
reporting of PORTAL Debt[s] Securities that is owned and operated by
The NASDAQ Stock Market LLC.
(h)-(x) No Change.
* * * * *
6504 Reporting Transactions in PORTAL Securities
Transactions in PORTAL Debt[s] Securities shall be reported by the
System in accordance with applicable self-regulatory organization
rules.
* * * * *
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
Background
On July 31, 2007, the SEC approved amendments to the PORTAL Rules
that reestablished a trading system for the purpose of quoting and
trading securities eligible for resale by qualified institutional
buyers under SEC Rule 144A.\5\ This approval represented a new phase in
the operation of the Nasdaq PORTAL Market, which was originally
approved by the SEC in 1990 simultaneously with the SEC's approval of
Rule 144A.\6\
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\5\ Securities Exchange Act Release No. 56172 (July 31, 2007),
72 FR 44196 (SR-NASDAQ-2006-065). At the time of approval, Nasdaq
indicated that it would first operate a system for trading PORTAL
equity, and thereafter would enable the system to trade PORTAL debt
securities. While the PORTAL equity functionality has been available
since August 15, 2007, Nasdaq has yet to implement trading
functionality for PORTAL debt securities. Subsequently, on February
21, 2008, the SEC approved amendments to the qualification
requirements for equity securities to be designated for inclusion in
PORTAL in cases where the security does not receive book-entry
settlement services at The Depository Trust Corporation (``DTC'') as
had previously been required by PORTAL Rule 6502(b)(1)(C), but is
nonetheless subject to an alternative regular-way non-DTC settlement
procedure. Securities Exchange Act Release No. 57368 (February 21,
2008), 73 FR 10852 (SR-NASDAQ-2008-011).
\6\ Rule 144A was adopted by the SEC in 1990 in Securities Act
Release No. 6862 (April 23, 1990), 55 FR 17933 (S7-23-88). PORTAL
was approved by the SEC in Securities Exchange Act Release No. 27956
(April 27, 1990), 55 FR 18781 (SR-NASD-88-23). For an explanation of
the history of the development of the PORTAL Market, see Securities
Exchange Act Release No. 55669 (April 25, 2007), 72 FR 23874 (SR-
NASDAQ-2006-065).
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During the period following the reestablishment of the Nasdaq
PORTAL Market, Nasdaq has reexamined the operational and ownership
structure of PORTAL with a view to adopting changes that reflect the
preferences of market participants and enhance the operation of the
system, which, in turn, Nasdaq believes will achieve the goals of
enhanced transparency and efficiency in the trading of restricted
securities that are at the heart of Nasdaq's PORTAL initiatives.
As a result, Nasdaq is proposing to: (1) Terminate the current
Nasdaq PORTAL Market for equity securities, while continuing to review
and designate both restricted debt and equity securities as PORTAL-
eligible securities in its SRO capacity; and (2) Enter into agreements
with certain of its members or their affiliates (the ``Firms'') to
create, and take a minority interest in, the Alliance, a Delaware
limited
[[Page 57189]]
liability company principally formed to operate a private open-access
over-the-counter platform to facilitate transactions in, and, through
expected links with third-party transfer tracking systems, monitor
ownership of and compliance with transfer restrictions applicable to
PORTAL eligible equity and certain other securities eligible for resale
under Rule 144A, initially to be known as The PORTAL Alliance Platform
(the ``Alliance Platform'').\7\ Under the proposed structure, Nasdaq
will cease to operate the Nasdaq PORTAL Market for equity securities in
its capacity as a self-regulatory organization and instead operate the
Alliance Platform in a private vendor capacity pursuant to corporate
and commercial agreements among and between Nasdaq and the Alliance.\8\
Nasdaq has also agreed to phase out use of trademarks using the term
PORTAL over the course of two years to prevent any confusion between
the new Alliance Platform and the terminated Nasdaq PORTAL Market for
equity securities. In return for its financial and intellectual
property contributions, Nasdaq will receive a 10% ownership interest in
the Alliance in addition to a non-voting preferred interest.\9\ Under
the terms of its agreement with the Alliance to operate the Alliance
Platform, Nasdaq will be reimbursed for the costs of operating and
maintaining the Alliance Platform. The business operations and
decisions of the Alliance Platform will ultimately be the
responsibility of the Alliance's Board of Managers. Beyond its capacity
as but one of what is expected to be initially 12 minority holders with
a voting board seat and acting at the direction of the Alliance as
operator of the Alliance Platform, Nasdaq will not direct, control, or
otherwise manage the business of the Alliance. In addition, Nasdaq
commits not to provide pricing or other concessions related to its
exchange facilities to Nasdaq members based on their usage of the
Alliance Platform.
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\7\ The Nasdaq member firms expected to enter into agreements
with Nasdaq either directly or through affiliated or successor
entities are: Banc of America Securities LLC; Citigroup Global
Markets Inc.; Credit Suisse Securities (USA) LLC; Deutsche Bank
Securities Inc.; Goldman, Sachs & Co.; J.P. Morgan Securities Inc.;
Lehman Brothers Inc.; Merrill Lynch, Pierce, Fenner & Smith
Incorporated; Morgan Stanley & Co. Incorporated; UBS Securities LLC;
and Wachovia Capital Markets, LLC.
\8\ Nasdaq has provided copies of these agreements to Commission
Staff.
\9\ Nasdaq's financial contribution to the Alliance will be an
amount equal to that received by Nasdaq for designating PORTAL
equity securities.
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Access to the Alliance Platform will be open to any qualified
registered broker-dealer or institution, and will be entirely
voluntary. Thus, any qualified party, including broker-dealers that are
not parties to the Alliance limited liability company agreement, may
enter indicative quotations, negotiate trades through and receive
transaction information from the Alliance Platform. Operationally, the
Alliance Platform expects to have the current Nasdaq PORTAL Market
quoting and trading functionality as it relates to PORTAL equity
securities link with existing transfer tracking systems that monitor
and enforce caps on recordholder numbers and other transfer
restrictions for equity securities. The Alliance Platform will forward
required trade reports for transactions in PORTAL securities negotiated
on or otherwise reported to the Alliance Platform to the Financial
Industry Regulatory Authority (``FINRA'') for regulatory purposes, as
well as forward settlement-related transaction information to the
relevant recipient(s) for settlement purposes.\10\
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\10\ Currently, DTC allows Rule 144A securities that are not
investment grade rated debt to be eligible for deposit, book-entry
delivery, and other depository services only if the Rule 144A
securities are designated for inclusion in a system of a self-
regulatory organization (``SRO'') approved by the Commission ``for
the reporting of quotation and trade information of Rule 144A
transactions (`SRO Rule 144A System').'' See Securities Exchange Act
Release No. 33327 (Dec. 13, 1993); 58 FR 67878. We note in this
regard that the Alliance Platform will not be a system of a SRO
approved by the Commission ``for the reporting of quotation and
trade information of Rule 144A transactions'' within the meaning of
this rule.
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Nasdaq believes the above structure will encourage the posting of
indicative quotation information in equity securities eligible for
resale under Rule 144A(i) within a framework that makes such
information generally available to qualified market participants and
(ii) through a system that allows the qualified market participants to
take action based on such information. In Nasdaq's view, this result is
far superior to the current situation where Nasdaq's sole ownership of
a 144A trading system as a facility of the exchange has resulted in no
material improvement in the transparency and efficiency in the trading
of 144A equity. This proposal creates an opportunity for a more
transparent and technologically efficient trading and trade reporting
environment for 144A equity to develop.
2. Statutory Basis
Nasdaq believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\11\ in general, and with
Sections 6(b)(5) of the Act,\12\ in particular, in that the proposal 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. In
particular, Nasdaq believes that the proposal will encourage more
competitive, efficient and transparent trading in restricted
securities. By providing an operational and ownership structure that
encourages an increased display of trading interest, Nasdaq expects the
proposal to benefit all market participants that seek to invest in, or
trade, such securities.
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\11\ 15 U.S.C. 78f.
\12\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition
Nasdaq does not believe that the proposed rule change will result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
Written comments were neither solicited nor received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
does not become operative for 30 days from the date on which it was
filed, or such shorter time as the Commission may designate, it has
become effective pursuant to Section 19(b)(3)(A) of the Act \13\ and
Rule 19b-4(f)(6) thereunder.\14\
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\13\ 15 U.S.C. 78s(b)(3)(A).
\14\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires that a self-regulatory organization submit to 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 Commission notes that Nasdaq satisfied the five-day
pre-filing notice requirement.
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At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is
[[Page 57190]]
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, as amended, 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 rule-comments@sec.gov. Please include
File Number SR-NASDAQ-2008-076 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2008-076. 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 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 offices
of Nasdaq. 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-2008-076 and
should be submitted on or before October 22, 2008.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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\15\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-22968 Filed 9-30-08; 8:45 am]
BILLING CODE 8010-01-P