UNITED STATES OF AMERICA
Before the SECURITIES AND EXCHANGE COMMISSION
File No. 4-464
Order Requiring the Filing of Sworn Statements Pursuant to Section 21(a)(1) of the Securities Exchange Act of 1934
The Commission has commenced an investigation to ascertain facts, conditions, practices and other matters with respect to the use of the National Association of Securities Dealers, Inc.'s ("NASD") Alternative Display Facility ("ADF")1 by Alternative Trading Systems ("ATSs"),2 including Electronic Communications Networks ("ECNs").3
The purpose of the Commission's investigation is to provide greater assurance to the Commission and to investors that ATSs are able to continue to satisfy their obligations under the federal securities laws, including the Commission's Order Handling Rules.4 The investigation will also aid the Commission in assessing whether it is necessary or appropriate in the public interest or for the protection of investors for the Commission to adopt or amend rules and regulations governing the use of the ADF and Nasdaq's SuperMontage facility.
As part of this investigation, the Commission believes it necessary to require written statements, under oath, from the principal executive officers of the ATSs that have expressed to the NASD an interest in using the ADF to quote in Nasdaq securities.
Accordingly, pursuant to Section 21(a)(1) of the Securities Exchange Act of 1934,5 it is:
ORDERED, that the principal executive officers of the ATSs that have expressed to the NASD an interest in using the ADF to quote in Nasdaq securities shall file a statement in writing, under oath, responding to the request for information articulated in the form attached hereto as Exhibit A. Such sworn statement shall be delivered in written form to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609 by the close of business on September 6, 2002.
By the Commission.
Margaret H. McFarland
Date: August 29, 2002
Statement Under Oath of Principal Executive Officer of an Alternative Trading System Concerning Present Intention to Use the NASD's Alternative Display Facility
I, [Name of principal executive officer] of [name of ATS] (the "ATS"), hereby state and attest that to the best of my knowledge, including my investigation or inquiry of others at the ATS, I have provided on this form, or on a document attached hereto and incorporated by reference herein, an accurate and complete statement responding to the following request for information:
Is it your present intention to use the NASD's Alternative Display Facility ("ADF") beginning on or before October 11, 2002, as the ATS's primary means of quoting in one or more Nasdaq securities and satisfying the ATS's quote obligations under the Securities and Exchange Commission rules?
Yes _______ No _______ If your answer is "yes," please:
1. Provide a list of the Nasdaq securities in which you currently intend for the ATS to post quotes on the ADF; and
2. Indicate what percentage of the ATS's dollar volume of business in Nasdaq securities you believe this will represent.
Subscribed and sworn to before me this ____ day of _____________, 2002.
My Commission Expires: ___________________
|1|| Exchange Act Release No. 46249 (July 24, 2002), 67 FR 49822 (July 31, 2002) (Order approving the ADF as a pilot program).
|2|| Alternative Trading Systems are defined in Rule 300 under the Securities Exchange Act of 1934 ("Act"), 17 CFR 240.300 (Regulation ATS).
|3|| Electronic communications networks are defined in Rule 11Ac1-1(a)(8) under the Act, 17 CFR 240.11Ac1-1(a)(8).
|4|| The Order Handling Rules include Rule 11Ac1-1 (the "Quote Rule") under the Act, 17 CFR 240.11Ac1-1, and Rule 11Ac1-4 (the "Limit Order Display Rule") under the Act, 17 CFR 240.11Ac1-4.
|5|| 15 U.S.C. 78u(a)|