Self-Regulatory Organizations; New York Stock Exchange, Inc. (n/k/a New York Stock Exchange LLC); Order Granting Approval of a Proposed Rule Change and Amendment No. 1 Thereto and Notice of Filing and Order Granting Accelerated Approval of Amendment No. 2 Thereto To Amend Exchange Delisting Rules To Conform to Recent Amendments to Commission Rules Regarding Removal From Listing and Withdrawal From Registration, 24879-24881 [E6-6320]
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Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Notices
association,5 the requirements of section
15A of the Act,6 in general, and section
15A(b)(6) of the Act,7 in particular,
which requires, among other things, that
the rules of a national securities
association be designed to facilitate
transactions in securities and to remove
impediments to and perfect the
mechanism of a free and open market.
The Commission believes that the
proposed rule change, as amended,
should provide useful information to
market participants and increase
transparency and order interaction at
the opening after a trading halt. In
addition, the Commission believes that
the proposed rule change, as amended,
should result in the public
dissemination of information that more
accurately reflects the trading in a
particular security at the open after a
trading halt. The Commission notes that
the Halt Cross is based on the Nasdaq
opening cross, which the Commission
approved in a prior filing.8
It is therefore ordered, pursuant to
section 19(b)(2) of the Act,9 that the
proposed rule change (SR–NASD–2006–
015), as amended, be, and it hereby is,
approved.
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.10
J. Lynn Taylor,
Assistant Secretary.
[FR Doc. E6–6317 Filed 4–26–06; 8:45 am]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–53685; File No. SR–NYSE–
2005–72]
Self-Regulatory Organizations; New
York Stock Exchange, Inc. (n/k/a New
York Stock Exchange LLC); Order
Granting Approval of a Proposed Rule
Change and Amendment No. 1 Thereto
and Notice of Filing and Order
Granting Accelerated Approval of
Amendment No. 2 Thereto To Amend
Exchange Delisting Rules To Conform
to Recent Amendments to Commission
Rules Regarding Removal From
Listing and Withdrawal From
Registration
April 20, 2006.
I. Introduction
On October 20, 2005, the New York
Stock Exchange, Inc. (n/k/a New York
Stock Exchange LLC) (‘‘NYSE’’ or
‘‘Exchange’’) filed with the Securities
and Exchange Commission (‘‘SEC’’ or
‘‘Commission’’), pursuant to section
19(b)(1) of the Securities Exchange Act
of 1934 (‘‘Act’’) 1 and Rule 19b–4
thereunder,2 a proposed rule change to
amend Exchange delisting rules to
conform to recent amendments to
Commission rules regarding removal
from listing and withdrawal from
registration. On December 22, 2005,
NYSE filed Amendment No. 1 to the
proposed rule change.3 The proposed
rule change, as amended, was published
for comment in the Federal Register on
March 13, 2006.4 No comments were
received regarding the proposal. On
April 11, 2006, the Exchange filed
Amendment No. 2 to the proposed rule
change.5 This order approves the
proposed rule change, as amended,
publishes notice of Amendment No. 2 to
the proposed rule change, and grants
accelerated approval to Amendment No.
2.
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 In Amendment No. 1, the Exchange made
clarifying changes to Item 3 of the Exchange’s Form
19b–4 and to Exhibit 1.
4 See Securities Exchange Act Release No. 53398
(March 2, 2006), 71 FR 12738.
5 In Amendment No. 2, the Exchange made
typographical changes to the proposed rule text of
Section 806.02 (Removal from List Upon Request of
Company) of the NYSE Listed Company Manual
that were intended to clarify that the Exchange’s
proposed new requirement that a company provide
a copy of the Form 25 to the Exchange
simultaneously with the filing of such Form 25 with
the Commission is a new requirement and is not
part of the requirements of Rule 12d2–2(c) under
the Act.
rmajette on PROD1PC67 with NOTICES
2 17
5 In approving the proposed rule change, the
Commission has considered its impact on
efficiency, competition, and capital formation. 15
U.S.C. 78c(f).
6 15 U.S.C. 78o–3.
7 15 U.S.C. 78o–3(b)(6).
8 See Securities Exchange Act Release No. 50405
(September 16, 2004), 69 FR 57118 (September 23,
2004).
9 15 U.S.C. 78s(b)(2).
10 17 CFR 200.30–3(a)(12).
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24879
II. Description of the Proposed Rule
Change
Section 12 of the Act 6 and Rule
12d2–2 thereunder 7 (‘‘SEC Rule 12d2–
2’’) govern the process for the delisting
and deregistration of securities listed on
national securities exchanges. Recent
amendments to SEC Rule 12d2–2
(‘‘amended SEC Rule 12d2–2’’) and
other Commission rules require the
electronic filing of revised Form 25 on
the Commission’s Electronic Data
Gathering, Analysis, and Retrieval
(‘‘EDGAR’’) system by exchanges and
issuers for all delistings, other than
delistings of standardized options and
securities futures, which are exempted.8
In the case of exchange-initiated
delistings, amended SEC Rule 12d2–2(b)
states that a national securities exchange
may file an application on Form 25 to
strike a class of securities from listing
and/or withdraw the registration of such
securities, in accordance with its rules,
if the rules of such exchange, at a
minimum, provide for: 9
(i) Notice to the issuer of the
exchange’s decision to delist its
securities;
(ii) An opportunity for appeal to the
exchange’s board of directors, or to a
committee designated by the board; and
(iii) Public notice of the national
securities exchange’s final
determination to remove the security
from listing and/or registration, by
issuing a press release and posting
notice on its Web site. Public notice
must be disseminated no fewer than 10
days before the delisting becomes
effective pursuant to amended SEC Rule
12d2–2(d)(1), and must remain posted
on its Web site until the delisting is
effective.
The Exchange proposes to amend
sections 804.00 and 806.02 of the
Exchange’s Listed Company Manual.
With respect to the above requirements
set forth in amended SEC Rule 12d2–
2(b), NYSE rules currently provide the
requisite issuer notice as well as an
opportunity for appeal to a committee
designated by the Board.10 NYSE rules
do not currently provide for the
mandated public notice, and
accordingly the Exchange is proposing
changes to section 804.00 of the NYSE
Listed Company Manual to provide that
6 15
U.S.C. 78l.
CFR 240.12d2–2.
8 See Securities Exchange Act Release No. 52029
(July 14, 2005), 70 FR 42456 (July 22, 2005).
9 See also Form 8–K (Item 3.01. Notice of
Delisting or Failure to Satisfy a Continued Listing
Rule or Standard; Transfer of Listing), which sets
forth disclosure requirements for issuers that do not
satisfy listing standards.
10 See section 804.00 (Procedure for Delisting) of
the NYSE Listed Company Manual.
7 17
E:\FR\FM\27APN1.SGM
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24880
Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Notices
prior to filing the Form 25 with the
Commission to withdraw a security
from listing and registration, the
Exchange will give public notice of its
final determination to delist the security
by issuing a press release and posting a
notice on its Web site. Such notice
would remain posted on the Exchange’s
Web site until the delisting is effective.
In the case of an issuer-initiated
delisting, the NYSE is retaining section
806.02 of the NYSE Listed Company
Manual that currently provides that an
issuer may delist a security after its
board approves the action and the issuer
furnishes the Exchange with a copy of
the board resolution authorizing such
delisting certified by the secretary of the
issuer. The Exchange’s proposal would
clarify that the issuer must comply with
all of the requirements of amended SEC
Rule 12d2–2(c) and thereafter file a
Form 25 with the Commission to
withdraw its security from listing and
registration. The Exchange’s proposal
would also add a new requirement that
the issuer must file a copy of Form 25
with the Exchange immediately after
submitting the Form 25 with the
Commission.
In addition to the proposed changes to
comply with amended SEC Rule 12d2–
2, the Exchange proposes to amend
section 804.00 to delete references
therein to ‘‘public Directors’’ and
‘‘industry Directors,’’ as these terms
relate to a historical governance
structure of the Exchange that no longer
exists.
rmajette on PROD1PC67 with NOTICES
III. Discussion
The Commission finds that the
proposed rule change is consistent with
the requirements of the Act and the
rules and regulations thereunder
applicable to a national securities
exchange 11 and, in particular, the
requirements of section 6 of the Act.12
Specifically, as discussed below, the
Commission finds that the proposal is
consistent with section 6(b)(5) of the
Act,13 which requires, in part, that the
rules of an exchange be 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, and processing information
with respect to, and facilitating
transactions in securities, to remove
impediments to and perfect the
mechanism of a free and open market
11 In approving this proposal, the Commission has
considered the proposed rule’s impact on
efficiency, competition, and capital formation. See
15 U.S.C. 78c(f).
12 15 U.S.C. 78f.
13 15 U.S.C. 78f(b)(5).
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15:13 Apr 26, 2006
Jkt 208001
and a national market system, and, in
general, to protect investors and the
public interest. Further, as noted in
more detail below, the changes being
adopted by the Exchange meet the
requirements of amended SEC Rule
12d2–2.
A. Exchange Delisting
Amended SEC Rule 12d2–2(b) states
that a national securities exchange may
file an application on Form 25 to strike
a class of securities from listing and/or
withdraw the registration of such
securities, in accordance with its rules,
if the rules of such exchange, at a
minimum, provide for notice to the
issuer of the exchange’s decision to
delist, opportunity for appeal, and
public notice of the exchange’s final
determination to delist. The
Commission believes that the
Exchange’s current rules and proposal
comply with the dictates of amended
SEC Rule 12d2–2(b).
NYSE rules currently provide for the
requisite issuer notice as well as an
opportunity for appeal to a committee
designated by the Board. Specifically, if
the Exchange staff should determine to
delist a security, it will notify the issuer
in writing of the basis of its
determination. Such notice will inform
the issuer that the issuer may appeal
staff delisting determinations to a
committee of the Board of Directors of
the Exchange.14 In addition, the
proposed rule change will provide for
public notice of the Exchange’s final
determination to remove the security
from listing and/or registration. This
should ensure that investors have
adequate notice of an exchange delisting
and is consistent with the protection of
investors under section 6(b)(5) of the
Act.15
B. Issuer Voluntary Delisting
In the case of an issuer-initiated
delisting, section 806.02 of the NYSE
Listed Company Manual currently
provides that an issuer may delist a
security after its board approves the
action and the issuer furnishes the
Exchange with a copy of the board
resolution authorizing such delisting
certified by the secretary of the issuer.
The Exchange’s proposal would clarify
that the issuer must comply with all of
the requirements of amended SEC Rule
12d2–2(c) and thereafter file a Form 25
with the Commission to withdraw its
security from listing and registration.
The Commission believes that the
amendments will fully inform issuers of
14 See Section 804.00 of the NYSE Listed
Company Manual.
15 15 U.S.C. 78f(b)(5).
PO 00000
Frm 00042
Fmt 4703
Sfmt 4703
the requirements for voluntary delisting
of their securities under NYSE rules and
federal securities laws.
The proposal also sets forth a new
requirement not in amended SEC Rule
12d2–2 that would require the issuer to
notify the Exchange that it has filed
Form 25 with the Commission
contemporaneously with such filing.
This requirement will allow the
Exchange to be fully informed of the
actual filing of a Form 25 and be
prepared to take timely action to delist
the security in accordance with the
filing of the Form.16
C. Accelerated Approval of Amendment
No. 2
Pursuant to section 19(b)(2) of the
Act,17 the Commission may not approve
any proposed rule change, or
amendment thereto, prior to the 30th
day after the date of publication of
notice of the filing thereof, unless the
Commission finds good cause for so
doing and publishes its reasons for so
finding. The Commission hereby finds
good cause for approving Amendment
No. 2 to the proposal, prior to the 30th
day after publishing notice of
Amendment No. 2 in the Federal
Register. The revisions made to the
proposal in Amendment No. 2 are
typographical changes clarifying that
the Exchange’s proposed requirement
that a company provide a copy of the
Form 25 to the Exchange
simultaneously with the filing of such
Form with the Commission is a new
requirement and is not part of the
requirements of amended SEC Rule
12d2–2(c). This was the intent of the
provision as originally proposed. The
Commission believes that accelerating
Amendment No. 2 is appropriate
because these revisions are clarifying
and do not raise new regulatory issues.
Accordingly, pursuant to Section
16 The Commission notes that current section
807.00 of the NYSE Listed Company Manual, which
the Exchange is retaining in its rules, provides in
part that where a company falls below continued
listing standards, the Exchange will permit the
company to voluntarily transfer its listing. During
this transition, the Exchange will daily disseminate
ticker and information notices identifying the
security’s status and will include similar
information on the Exchange’s Web site.
In addition, amended SEC Rule 12d2–2(c)(2)(iii)
requires a company seeking voluntary delisting to
publish notice of its intention, along with its
reasons for delisting, via a press release and Web
site. In such cases, the Commission expects that a
company below Exchange continued listing
standards, in complying with amended SEC Rule
12d2–2(c)(2)(iii), would disclose in its public notice
that it has fallen below continued listing standards,
including the specific listing policies and standards
which it does not comply with, and is voluntarily
delisting from the Exchange.
17 15 U.S.C. 78s(b)(2).
E:\FR\FM\27APN1.SGM
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Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Notices
19(b)(2) of the Act,18 the Commission
finds good cause to approve
Amendment No. 2 prior to the thirtieth
day after notice of the Amendment is
published in the Federal Register.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning Amendment No.
2, including whether Amendment No. 2
is consistent with the Act. Comments
may be submitted by any of the
following methods:
Electronic Comments
V. Conclusion
It is therefore ordered, pursuant to
section 19(b)(2) of the Act,19 that the
proposed rule change (File No. SR–
NYSE–2005–72), as amended, is
approved, and Amendment No. 2 to the
proposed rule change is hereby granted
accelerated approval.
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.20
J. Lynn Taylor,
Assistant Secretary.
[FR Doc. E6–6320 Filed 4–26–06; 8:45 am]
BILLING CODE 8010–01–P
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
No. SR–NYSE–2005–72 on the subject
line.
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–53689; File No. SR–NYSE–
2005–60]
Self-Regulatory Organizations; New
York Stock Exchange, Inc. (n/k/a New
• Send paper comments in triplicate
York Stock Exchange LLC); Notice of
to Nancy M. Morris, Secretary,
Filing of Proposed Rule Change and
Securities and Exchange Commission,
Amendment No. 2 Thereto Relating to
Station Place, 100 F Street, NE.,
Proposed New Rules 342.24 (‘‘Annual
Washington, DC 20549–1090.
Branch Office Inspection’’) and 342.25
(‘‘Risk-Based Surveillance and Branch
All submissions should refer to File
Office Identification’’) to Permit
Number SR–NYSE–2005–72. This file
Member Organizations to Classify
number should be included on the
subject line if e-mail is used. To help the Appropriate Branch Offices for
Cyclical Inspections and Proposed
Commission process and review your
New Rule 342.26 (‘‘Criteria for
comments more efficiently, please use
only one method. The Commission will Inspection Programs’’)
post all comments on the Commission’s April 20, 2006.
Internet Web site (https://www.sec.gov/
Pursuant to section 19(b)(1) of the
rules/sro.shtml). Copies of the
Securities Exchange Act of 1934
submission, all subsequent
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
amendments, all written statements
notice is hereby given that on August
with respect to the proposed rule
15, 2005, the New York Stock Exchange,
change that are filed with the
Inc.3 (n/k/a New York Stock Exchange
Commission, and all written
LLC) (‘‘Exchange’’) filed with the
communications relating to the
Securities and Exchange Commission
proposed rule change between the
Commission and any person, other than (‘‘SEC’’ or ‘‘Commission’’) the proposed
rule change as described in Items I, II,
those that may be withheld from the
and III below, which Items have been
public in accordance with the
prepared by the Exchange. The
provisions of 5 U.S.C. 552, will be
Exchange filed Amendment No. 2 to the
available for inspection and copying in
proposed rule change on April 7, 2006.4
the Commission’s Public Reference
Room. Copies of such filing also will be The Commission is publishing this
notice to solicit comments on the
available for inspection and copying at
the principal office of the Exchange. All
19 Id.
comments received will be posted
20 17 CFR 200.30–3(a)(12).
without change; the Commission does
1 15 U.S.C. 78s(b)(1).
not edit personal identifying
2 17 CFR 240.19b–4.
information from submissions. You
3 The Exchange is now known as the New York
should submit only information that
Stock Exchange LLC. See Securities Exchange Act
you wish to make available publicly. All Release No. 53382 (February 27, 2006), 71 FR 11251
(March 6, 2006).
submissions should refer to File
4 See Amendment No. 2.
Number SR–NYSE–2005–72 and should
The Exchange filed Amendment No. 1 to the
be submitted on or before May 18, 2006.
rmajette on PROD1PC67 with NOTICES
Paper Comments
proposed rule change on October 31, 2005 and
subsequently withdrew Amendment No. 1 on April
7, 2006.
18 Id.
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24881
proposed rule change, as amended, from
interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange is filing with the
Commission proposed new Exchange
Rules 342.24 (‘‘Annual Branch Office
Inspection’’) and 342.25 (‘‘Risk-Based
Surveillance and Branch Office
Identification’’) to permit organizations
to classify appropriate branch offices for
cyclical inspections and 342.26
(‘‘Criteria for Inspection Programs’’).
The text of the proposed rule change is
available on the Exchange’s Web site
(https://www.nyse.com), at the
Exchange’s Office of the Secretary, and
at 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
Exchange 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. The
Exchange 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
The proposed amendments would
permit member organizations, with the
written approval of the Exchange, to
exempt certain branch offices from the
general annual branch office inspection
requirement of Exchange Rule 342
(‘‘Offices—Approval, Supervision and
Control’’) by utilizing an Exchangeapproved risk-based surveillance
system.5 In addition, the proposed
amendments would re-position a
portion of Exchange Rule 342’s
Interpretation into the rule text.
The purpose of the proposed
amendments is to provide member
organizations the flexibility to reduce
5 Pursuant to discussions with Exchange staff, the
Commission made clarifying changes to the purpose
section of the proposed rule change. Telephone
conversations between Stephen Kasprzak, Principal
Counsel, Rule and Interpretative Standards,
Exchange, and Cyndi N. Rodriguez, Special
Counsel, and Kate Robbins, Attorney, Division of
Market Regulation (‘‘Division’’), Commission, on
April 18, 2006.
E:\FR\FM\27APN1.SGM
27APN1
]]>Agencies
[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)]
[Notices]
[Pages 24879-24881]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-6320]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-53685; File No. SR-NYSE-2005-72]
Self-Regulatory Organizations; New York Stock Exchange, Inc. (n/
k/a New York Stock Exchange LLC); Order Granting Approval of a Proposed
Rule Change and Amendment No. 1 Thereto and Notice of Filing and Order
Granting Accelerated Approval of Amendment No. 2 Thereto To Amend
Exchange Delisting Rules To Conform to Recent Amendments to Commission
Rules Regarding Removal From Listing and Withdrawal From Registration
April 20, 2006.
I. Introduction
On October 20, 2005, the New York Stock Exchange, Inc. (n/k/a New
York Stock Exchange LLC) (``NYSE'' or ``Exchange'') filed with the
Securities and Exchange Commission (``SEC'' or ``Commission''),
pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to
amend Exchange delisting rules to conform to recent amendments to
Commission rules regarding removal from listing and withdrawal from
registration. On December 22, 2005, NYSE filed Amendment No. 1 to the
proposed rule change.\3\ The proposed rule change, as amended, was
published for comment in the Federal Register on March 13, 2006.\4\ No
comments were received regarding the proposal. On April 11, 2006, the
Exchange filed Amendment No. 2 to the proposed rule change.\5\ This
order approves the proposed rule change, as amended, publishes notice
of Amendment No. 2 to the proposed rule change, and grants accelerated
approval to Amendment No. 2.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ In Amendment No. 1, the Exchange made clarifying changes to
Item 3 of the Exchange's Form 19b-4 and to Exhibit 1.
\4\ See Securities Exchange Act Release No. 53398 (March 2,
2006), 71 FR 12738.
\5\ In Amendment No. 2, the Exchange made typographical changes
to the proposed rule text of Section 806.02 (Removal from List Upon
Request of Company) of the NYSE Listed Company Manual that were
intended to clarify that the Exchange's proposed new requirement
that a company provide a copy of the Form 25 to the Exchange
simultaneously with the filing of such Form 25 with the Commission
is a new requirement and is not part of the requirements of Rule
12d2-2(c) under the Act.
---------------------------------------------------------------------------
II. Description of the Proposed Rule Change
Section 12 of the Act \6\ and Rule 12d2-2 thereunder \7\ (``SEC
Rule 12d2-2'') govern the process for the delisting and deregistration
of securities listed on national securities exchanges. Recent
amendments to SEC Rule 12d2-2 (``amended SEC Rule 12d2-2'') and other
Commission rules require the electronic filing of revised Form 25 on
the Commission's Electronic Data Gathering, Analysis, and Retrieval
(``EDGAR'') system by exchanges and issuers for all delistings, other
than delistings of standardized options and securities futures, which
are exempted.\8\
---------------------------------------------------------------------------
\6\ 15 U.S.C. 78l.
\7\ 17 CFR 240.12d2-2.
\8\ See Securities Exchange Act Release No. 52029 (July 14,
2005), 70 FR 42456 (July 22, 2005).
---------------------------------------------------------------------------
In the case of exchange-initiated delistings, amended SEC Rule
12d2-2(b) states that a national securities exchange may file an
application on Form 25 to strike a class of securities from listing
and/or withdraw the registration of such securities, in accordance with
its rules, if the rules of such exchange, at a minimum, provide for:
\9\
---------------------------------------------------------------------------
\9\ See also Form 8-K (Item 3.01. Notice of Delisting or Failure
to Satisfy a Continued Listing Rule or Standard; Transfer of
Listing), which sets forth disclosure requirements for issuers that
do not satisfy listing standards.
---------------------------------------------------------------------------
(i) Notice to the issuer of the exchange's decision to delist its
securities;
(ii) An opportunity for appeal to the exchange's board of
directors, or to a committee designated by the board; and
(iii) Public notice of the national securities exchange's final
determination to remove the security from listing and/or registration,
by issuing a press release and posting notice on its Web site. Public
notice must be disseminated no fewer than 10 days before the delisting
becomes effective pursuant to amended SEC Rule 12d2-2(d)(1), and must
remain posted on its Web site until the delisting is effective.
The Exchange proposes to amend sections 804.00 and 806.02 of the
Exchange's Listed Company Manual. With respect to the above
requirements set forth in amended SEC Rule 12d2-2(b), NYSE rules
currently provide the requisite issuer notice as well as an opportunity
for appeal to a committee designated by the Board.\10\ NYSE rules do
not currently provide for the mandated public notice, and accordingly
the Exchange is proposing changes to section 804.00 of the NYSE Listed
Company Manual to provide that
[[Page 24880]]
prior to filing the Form 25 with the Commission to withdraw a security
from listing and registration, the Exchange will give public notice of
its final determination to delist the security by issuing a press
release and posting a notice on its Web site. Such notice would remain
posted on the Exchange's Web site until the delisting is effective.
---------------------------------------------------------------------------
\10\ See section 804.00 (Procedure for Delisting) of the NYSE
Listed Company Manual.
---------------------------------------------------------------------------
In the case of an issuer-initiated delisting, the NYSE is retaining
section 806.02 of the NYSE Listed Company Manual that currently
provides that an issuer may delist a security after its board approves
the action and the issuer furnishes the Exchange with a copy of the
board resolution authorizing such delisting certified by the secretary
of the issuer. The Exchange's proposal would clarify that the issuer
must comply with all of the requirements of amended SEC Rule 12d2-2(c)
and thereafter file a Form 25 with the Commission to withdraw its
security from listing and registration. The Exchange's proposal would
also add a new requirement that the issuer must file a copy of Form 25
with the Exchange immediately after submitting the Form 25 with the
Commission.
In addition to the proposed changes to comply with amended SEC Rule
12d2-2, the Exchange proposes to amend section 804.00 to delete
references therein to ``public Directors'' and ``industry Directors,''
as these terms relate to a historical governance structure of the
Exchange that no longer exists.
III. Discussion
The Commission finds that the proposed rule change is consistent
with the requirements of the Act and the rules and regulations
thereunder applicable to a national securities exchange \11\ and, in
particular, the requirements of section 6 of the Act.\12\ Specifically,
as discussed below, the Commission finds that the proposal is
consistent with section 6(b)(5) of the Act,\13\ which requires, in
part, that the rules of an exchange be 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, and 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. Further, as noted in more
detail below, the changes being adopted by the Exchange meet the
requirements of amended SEC Rule 12d2-2.
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\11\ In approving this proposal, the Commission has considered
the proposed rule's impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
\12\ 15 U.S.C. 78f.
\13\ 15 U.S.C. 78f(b)(5).
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A. Exchange Delisting
Amended SEC Rule 12d2-2(b) states that a national securities
exchange may file an application on Form 25 to strike a class of
securities from listing and/or withdraw the registration of such
securities, in accordance with its rules, if the rules of such
exchange, at a minimum, provide for notice to the issuer of the
exchange's decision to delist, opportunity for appeal, and public
notice of the exchange's final determination to delist. The Commission
believes that the Exchange's current rules and proposal comply with the
dictates of amended SEC Rule 12d2-2(b).
NYSE rules currently provide for the requisite issuer notice as
well as an opportunity for appeal to a committee designated by the
Board. Specifically, if the Exchange staff should determine to delist a
security, it will notify the issuer in writing of the basis of its
determination. Such notice will inform the issuer that the issuer may
appeal staff delisting determinations to a committee of the Board of
Directors of the Exchange.\14\ In addition, the proposed rule change
will provide for public notice of the Exchange's final determination to
remove the security from listing and/or registration. This should
ensure that investors have adequate notice of an exchange delisting and
is consistent with the protection of investors under section 6(b)(5) of
the Act.\15\
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\14\ See Section 804.00 of the NYSE Listed Company Manual.
\15\ 15 U.S.C. 78f(b)(5).
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B. Issuer Voluntary Delisting
In the case of an issuer-initiated delisting, section 806.02 of the
NYSE Listed Company Manual currently provides that an issuer may delist
a security after its board approves the action and the issuer furnishes
the Exchange with a copy of the board resolution authorizing such
delisting certified by the secretary of the issuer. The Exchange's
proposal would clarify that the issuer must comply with all of the
requirements of amended SEC Rule 12d2-2(c) and thereafter file a Form
25 with the Commission to withdraw its security from listing and
registration. The Commission believes that the amendments will fully
inform issuers of the requirements for voluntary delisting of their
securities under NYSE rules and federal securities laws.
The proposal also sets forth a new requirement not in amended SEC
Rule 12d2-2 that would require the issuer to notify the Exchange that
it has filed Form 25 with the Commission contemporaneously with such
filing. This requirement will allow the Exchange to be fully informed
of the actual filing of a Form 25 and be prepared to take timely action
to delist the security in accordance with the filing of the Form.\16\
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\16\ The Commission notes that current section 807.00 of the
NYSE Listed Company Manual, which the Exchange is retaining in its
rules, provides in part that where a company falls below continued
listing standards, the Exchange will permit the company to
voluntarily transfer its listing. During this transition, the
Exchange will daily disseminate ticker and information notices
identifying the security's status and will include similar
information on the Exchange's Web site.
In addition, amended SEC Rule 12d2-2(c)(2)(iii) requires a
company seeking voluntary delisting to publish notice of its
intention, along with its reasons for delisting, via a press release
and Web site. In such cases, the Commission expects that a company
below Exchange continued listing standards, in complying with
amended SEC Rule 12d2-2(c)(2)(iii), would disclose in its public
notice that it has fallen below continued listing standards,
including the specific listing policies and standards which it does
not comply with, and is voluntarily delisting from the Exchange.
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C. Accelerated Approval of Amendment No. 2
Pursuant to section 19(b)(2) of the Act,\17\ the Commission may not
approve any proposed rule change, or amendment thereto, prior to the
30th day after the date of publication of notice of the filing thereof,
unless the Commission finds good cause for so doing and publishes its
reasons for so finding. The Commission hereby finds good cause for
approving Amendment No. 2 to the proposal, prior to the 30th day after
publishing notice of Amendment No. 2 in the Federal Register. The
revisions made to the proposal in Amendment No. 2 are typographical
changes clarifying that the Exchange's proposed requirement that a
company provide a copy of the Form 25 to the Exchange simultaneously
with the filing of such Form with the Commission is a new requirement
and is not part of the requirements of amended SEC Rule 12d2-2(c). This
was the intent of the provision as originally proposed. The Commission
believes that accelerating Amendment No. 2 is appropriate because these
revisions are clarifying and do not raise new regulatory issues.
Accordingly, pursuant to Section
[[Page 24881]]
19(b)(2) of the Act,\18\ the Commission finds good cause to approve
Amendment No. 2 prior to the thirtieth day after notice of the
Amendment is published in the Federal Register.
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\17\ 15 U.S.C. 78s(b)(2).
\18\ Id.
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IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning Amendment No. 2, including whether Amendment No. 2
is consistent with the Act. Comments may be submitted by any of the
following methods:
Electronic Comments
Use the Commission's Internet comment form (https://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File No. SR-NYSE-2005-72 on the subject line.
Paper Comments
Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, Station Place, 100 F
Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2005-72. 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 (https://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. 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-NYSE-2005-72 and should be submitted on or before May
18, 2006.
V. Conclusion
It is therefore ordered, pursuant to section 19(b)(2) of the
Act,\19\ that the proposed rule change (File No. SR-NYSE-2005-72), as
amended, is approved, and Amendment No. 2 to the proposed rule change
is hereby granted accelerated approval.
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\19\ Id.
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\20\
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\20\ 17 CFR 200.30-3(a)(12).
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J. Lynn Taylor,
Assistant Secretary.
[FR Doc. E6-6320 Filed 4-26-06; 8:45 am]
BILLING CODE 8010-01-P
