Self-Regulatory Organizations; New York Stock Exchange, Inc. (n/k/a New York Stock Exchange LLC); Order Approving Proposed Rule Change and Amendment No. 1 Thereto, and Notice of Filing and Order Granting Accelerated Approval to Amendment No. 3, Relating to Annual Financial Statement Distribution Requirements and Listed Company Manual Sections 103.00, 202.05, 203.00, 203.01, 203.02, 203.03, 204.00 Through .33, 303A.14, 313.00, 401.04, and 703.09, 51260-51264 [E6-14276]

Download as PDF 51260 Federal Register / Vol. 71, No. 167 / Tuesday, August 29, 2006 / Notices the protection of investors, or otherwise in furtherance of the purposes of the Act.15 C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others The Exchange has neither solicited nor received written comments on the proposed rule change, as amended. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the proposed rule change, as amended: (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 11 and Rule 19b– 4(f)(6) thereunder.12 A proposed rule change filed under Rule 19b–4(f)(6) 13 normally does not become operative prior to thirty days after the date of filing. NYSE requests that the Commission waive the 30-day operative delay, as specified in Rule 19b–4(f)(6)(iii), and designate the proposed rule change to become operative immediately. The Commission hereby grants the request. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because the extension will allow NYSE to have substantially similar distribution requirements to other Exchanges and does not unduly burden the marketplace.14 For these reasons, the Commission designates the proposed rule change, as amended, as effective and operative immediately. At any time within 60 days of the filing of the proposed rule change, as amended, the Commission may summarily abrogate such proposed rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for 11 15 U.S.C. 78s(b)(3)(A). 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. 13 17 CFR 240.19b–4(f)(6). 14 For purposes only of waiving the operative delay for this proposal, the Commission has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). jlentini on PROD1PC65 with NOTICES 12 17 VerDate Aug<31>2005 17:07 Aug 28, 2006 Jkt 208001 Number SR–NYSE–2006–64 and should be submitted on or before September 19, 2006. 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: For the Commission, by the Division of Market Regulation, pursuant to delegated authority.16 Nancy M. Morris, Secretary. [FR Doc. E6–14307 Filed 8–28–06; 8:45 am] 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–NYSE–2006–64 on the subject line. SECURITIES AND EXCHANGE COMMISSION 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–2006–64. 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. 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 15 For purposes of calculating the 60-day period within which the Commission may summarily abrogate the proposed rule change, as amended, under Section 19(b)(3)(C) of the Act, the Commission considers the period to commence on August 21, 2006, the date on which the Exchange submitted Amendment No. 1. See 15 U.S.C. 78s(b)(3)(C). PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 BILLING CODE 8010–01–P [Release No. 34–54344; File No. SR–NYSE– 2005–68] Self-Regulatory Organizations; New York Stock Exchange, Inc. (n/k/a New York Stock Exchange LLC); Order Approving Proposed Rule Change and Amendment No. 1 Thereto, and Notice of Filing and Order Granting Accelerated Approval to Amendment No. 3, Relating to Annual Financial Statement Distribution Requirements and Listed Company Manual Sections 103.00, 202.05, 203.00, 203.01, 203.02, 203.03, 204.00 Through .33, 303A.14, 313.00, 401.04, and 703.09 August 21, 2006. I. Introduction On September 30, 2005, the New York Stock Exchange LLC (‘‘NYSE’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘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 relating to the Exchange’s annual financial statement distribution requirements and Listed Company Manual Sections 103.00, 202.05, 203.00, 203.01, 203.02, 203.03, 204.00 through .33, 303A.14, 313.00, 401.04, and 703.09. On June 9, 2006, the Exchange submitted Amendment No. 1 to the proposed rule change.3 The proposed rule change, as amended, was published for comment in the Federal Register on June 29, 2006.4 The Commission received five comments regarding the proposal.5 On August 10, 2006, the 16 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 See Amendment No. 1 dated June 9, 2006 (‘‘Amendment No. 1’’). In Amendment No. 1, the Exchange eliminated from the present filing other proposed rule changes to Section 103 and 302 of the Listed Company Manual, and clarified certain details of its proposal. 4 See Securities Exchange Act Release No. 54029 (June 21, 2006), 71 FR 37147 (June 29, 2006) (‘‘Notice’’). 5 See Letter from Richard J. Daly, Group CoPresident, ADP Brokerage Services Group (‘‘ADP’’), 1 15 E:\FR\FM\29AUN1.SGM 29AUN1 Federal Register / Vol. 71, No. 167 / Tuesday, August 29, 2006 / Notices Exchange filed Amendment No. 3 to the proposed rule change.6 On August 11, 2006, the Exchange submitted a letter to the Commission responding to the comments.7 This order approves the proposed rule change, as amended by Amendments Nos. 1 and 3, provides notice of Amendment No. 3, solicits comments from interested persons on Amendment No. 3, and grants accelerated approval of Amendment No. 3. jlentini on PROD1PC65 with NOTICES II. Description of the Proposal The Exchange proposes to amend Section 203.01 of the Listed Company Manual to allow a listed company to satisfy NYSE’s annual financial statement distribution requirement by making the company’s annual report on Form 10–K, 20–F, 40–F or N–CSR available on or by a link through its corporate Web site. In Amendment No. 3, the Exchange modified the proposal to provide that in the case of a listed company that is a closed-end fund, if the company does not maintain its own Web site, the company may utilize a Web site that the company is allowed to use to satisfy the Web site posting requirement in Rule 16a–3(k) of the Act.8 Included with this link or posting, to Nancy M. Morris, Secretary, Commission, dated July 20, 2006 (‘‘ADP Letter’’); Letter from Dorothy M. Donohue, Associate Counsel, Investment Company Institute, to Nancy M. Morris, Secretary, Commission, dated July 20, 2006 (‘‘ICI Letter’’); Letter from David P. Cosper, Chief Financial Officer, Executive Vice President, Sonic Automotive, Inc., to Nancy M. Morris, Secretary, Commission, dated July 6, 2006 (‘‘Sonic Letter’’); Letter from Philip Broadley, Chair, The Hundred Group of Finance Directors, and Mark Harding, Chair, General Counsel 100 Group, to Nancy M. Morris, Secretary, Commission, dated June 19, 2006 (‘‘Hundred Group Letter’’); Letter from Scott Lamb, Vice President, Investor Relations, Coeur d’Alene Mines Corporation, to Jonathan G. Katz, Secretary, Commission, dated October 18, 2005 (‘‘Coeur Letter’’). 6 See Amendment No. 3 dated August 10, 2006 (‘‘Amendment No. 3’’). In Amendment No. 3, the Exchange modified the proposed rule language in Section 303A.14 in response to the ICI Letter. ICI recommended that the Exchange modify the proposed rule change to make it clear that investment companies that do not have their own Web sites can use a related Web Site. See infra Part III. In Amendment No. 3, the Exchange also modified the proposed rule change to require that when a listed company issues a press release announcing the filing of its annual report with the Commission, that this press release also state the Web site where shareholders may access the annual report. The Exchange submitted Amendment No. 2 to the Commission on August 4, 2006 and withdrew Amendment No. 2 on August 10, 2006. 7 See Letter from Mary Yeager, Assistant Secretary, NYSE, to Nancy M. Morris, Secretary, Commission, dated August 11, 2006 (‘‘NYSE Response Letter’’). 8 17 CFR 240.16a–3(k) states, in pertinent part, that: ‘‘In the case of an issuer that is an investment company that does not maintain its own Web site; if any of the issuer’s investment advisor, sponsor, depositor, trustee, administrator, principal VerDate Aug<31>2005 17:07 Aug 28, 2006 Jkt 208001 the listed company must also include a prominent undertaking in English that it would deliver a paper copy of the company’s complete audited financial statements free of charge to any shareholder who requests it. The Exchange would also require a listed company to issue a press release simultaneously with its Web site posting stating that its annual report has been filed with the Commission. This press release must also specify the company’s Web site address 9 and indicate that shareholders have the ability to receive a hard copy of the company’s complete audited financial statements free of charge upon request within a reasonable period of time. The Exchange also proposes to amend Section 203.01 of the Listed Company Manual to eliminate the following provisions: (i) That a company inform the NYSE if it is unable to file its annual report with the Commission in a timely manner; (ii) that a company notify the NYSE prior to the filing deadline if it will not file its annual report with the Commission on time, as well as the language setting out the date by which a company must distribute its annual report once the late annual report has been filed with the Commission; (iii) the Exchange’s requirements regarding the content of annual reports and annual financial statements; and (iv) requirements regarding the publication and distribution of annual financial statements.10 The Exchange also proposes to amend Section 203.02 of the Listed Company Manual to consolidate and summarize the Exchange’s reporting requirements for interim financial statements and to eliminate those provisions of Section 203.02 of the Listed Company Manual that are no longer applicable or that do not contain actual listing requirements.11 The Exchange also proposes to amend Section 103.00 of the Listed Company Manual to eliminate the requirement that foreign private issuers distribute to shareholders at least a summary annual report that includes summary financial information reconciled to U.S. generally accepted accounting principles and provide a full annual report to shareholders upon request, as well the requirement that a company that proposes to distribute a summary underwriter, or any affiliated person of the investment company maintains a Web site that includes the name of the issuer, the issuer shall comply with the posting requirements by posting the forms on one such Web site.’’ See also Amendment No. 3, supra note 6. 9 See Amendment No. 3, supra note 6. 10 See Notice at 37148–49. 11 See id. at 37149–50. PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 51261 annual report contact an Exchange representative to determine whether the proposed use of the summary annual report meets the Exchange’s requirements. NYSE also proposes to eliminate language from the first and sixth paragraphs of Section 103.00 of the Listed Company Manual to the extent that such language does not set forth actual listing requirements.12 The Exchange also proposes conforming amendments to Sections 202.05, 203.03, 204.00 through .33 and 313.00 of the Listed Company Manual.13 These amendments include renumbering of sections and the elimination of references to annual report obligations throughout the Listed Company Manual, including with respect to procedures relating to the distribution of annual reports. The Exchange also proposes to amend Section 204.00 of the Listed Company Manual to consolidate the requirements for companies to provide notice to and file certain documents with the Exchange.14 In particular, the Exchange proposes to limit the need for companies to provide information to the Exchange that is available via the Commission’s Electronic Data Gathering Analysis and Retrieval (EDGAR) system. The Exchange also proposes to eliminate certain explanatory language from Section 204.00 of the Listed Company Manual that the Exchange represented to be superfluous as a result of the proposed changes. The Exchange also proposes to add a new Section 303A.14 to the Listed Company Manual that specifically requires listed companies to have and maintain a Web site.15 This proposed section also includes the information required under Section 303A of the Listed Company Manual that listed companies must post to their Web sites, including committee charters, corporate governance guidelines and their code of business conduct and ethics. In Amendment No. 3, the Exchange modified the proposal to provide that in the case of a listed company that is a closed-end fund, if the company does not maintain its own Web site, the company may utilize a Web site that the company is allowed to use to satisfy the Web site posting requirement in Rule 16a–3(k) of the Act.16 The Exchange also proposes to eliminate Section 401.04 of the Listed Company Manual which provides guidance regarding the interval between 12 See id. at 37147–48. id. at 37148, 37150–51. 14 See id. at 37150–51. 15 See id. at 37150–51. 16 See id. at 37151. 13See E:\FR\FM\29AUN1.SGM 29AUN1 51262 Federal Register / Vol. 71, No. 167 / Tuesday, August 29, 2006 / Notices the end of a listed company’s fiscal year and its annual meeting of shareholders.17 Lastly, the Exchange proposes to amend Section 703.09 of the Listed Company Manual to eliminate requirements relating to the disclosure of options, stock purchase and other remuneration plans.18 III. Comments The Commission received five comment letters regarding the proposal.19 Four comment letters supported the Exchange’s proposed rule change. The ICI stated that the Exchange’s proposal was ‘‘highly appropriate’’ given the tremendous growth in the Internet and its importance to investors as an information source.20 The ICI also stated that internet access provides a more efficient way to access the reports, as well the ability to search in the reports for information of particular interest to investors. Finally, the ICI recommended that in the case of an investment company that does not maintain its own Web site, the investment company make its annual report available on, or by a link through, a Web site maintained, for example, by the company’s investment adviser.21 Another commenter, Sonic Automotive, an NYSE-listed company, commented that it was sensible to deliver information in the most expeditious and efficient manner in a day and age of instant communications.22 Coeur d’Alene Mines Corporation, also an NYSE-listed company, expressed support for the proposal, citing its own experience that most investors prefer the immediacy and ease of access associated with electronic delivery, and that the rule change would permit it to materially reduce costs associated with distributing the annual report.23 This commenter also noted that the company’s annual report and other Commission filings are already routinely available on or through the company’s Web site, and on other sites such as EDGAR, long before they are available through mass mailings or individual mailings. In this regard, the commenter noted that each year’s newly published annual report is already ‘‘old news’’ by the time it arrives in an investor’s mailbox. Another commenter expressed the view that shareholders jlentini on PROD1PC65 with NOTICES 17 See id. at 37152. id. 19 See Supra note 5. 20 ICI Letter, supra note 5. 21 Id.; see also Amendment No. 3, Supra note 6. 22 Sonic Automotive Letter, supra note 5. 23 Coeur Letter, supra note 5. 18 See VerDate Aug<31>2005 17:07 Aug 28, 2006 Jkt 208001 prefer immediately available electronic information, and that hard copies provided later are of limited use.24 Moreover, this commenter stated that these benefits would be achieved while allowing for a ‘‘significant’’ cost reduction for foreign private issuers listed on the Exchange. One commenter, ADP, opposed the proposed rule change.25 ADP argued that the Exchange’s proposal to eliminate the annual financial statement distribution requirement in Section 203.01 of the Listed Company Manual could have adverse affects on U.S. holders of securities of NYSE-listed foreign private issuers. ADP expressed a broad concern regarding the ‘‘access equals delivery’’ model upon which the proposed amendments are based, and stated that the Exchange has proposed making the change to Section 203.01 in the absence of any meaningful data supporting its underlying premise. ADP disagrees with the Exchange’s belief that the vast majority of people in this country that review company financials access them online—either through the company’s own Web site, EDGAR, or some other service provider. In particular, ADP asserted that (i) fewer shareholders would have access to annual financial statements, (ii) fewer shareholders would look at annual financial statements, (iii) more votes being cast without the benefit of financial statement review, and (iv) costs would be shifted to shareholders.26 The Exchange responded by stating that the Commission did not receive any negative comment letters from a retail or institutional investor with respect to the proposed rule change.27 The Exchange also noted that the proposed rule change would not confine investors to online access. Rather, the Exchange explained that the proposed rule requires listed companies to issue a press release to inform investors that the annual report filed with the Commission is available on the listed company’s Web site, and that the Exchange will also require that shareholders have the ability to receive a hard copy of the complete audited financial statements free of charge upon request within a reasonable period of time. Finally, the NYSE noted that the 24 Hundred Group Letter, supra note 5. This commenter also noted that its clientele, many publicly traded United Kingdom companies, must incur the costs of distributing two annual reports to shareholders, one consisting of the annual report and accounts required under the relevant U.K. laws, and the other containing financial statements reconciled to U.S. GAAP. 25 ADP Letter, supra note 5. 26 Id. 27 See NYSE Response Letter, supra note 7. PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 proposed rule change simply provides listed companies with an alternative to physical delivery, and that a listed company may continue to physically distribute an annual report if it wishes to do so. IV. Discussion After careful consideration of the proposal and the comments received, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.28 Specifically, the Commission finds that the proposal, as amended, is consistent with Section 6(b)(5) of the Act,29 which requires, among other things, that the rules of a national securities exchange be designed to promote just and equitable principles of trade, 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. With respect to the Exchange’s proposal to amend Section 203.01 of its Listed Company Manual to allow companies to satisfy the Exchange’s annual financial distribution requirement by making the company’s annual report on Form 10–K, 20–F, 40– F or N–CSR available on its corporate Web site, the Exchange and several of the commenters have stated that the new rule will be a more efficient way for listed companies to deliver, and shareholders to utilize, annual financial statements.30 The Commission believes that electronic delivery may offer shareholders immediate access to financial information and greater ability to search such information. The Commission also believes that the proposed rule change may lead to significant cost savings for listed companies, savings that will ultimately accrue to those companies’ shareholders. The Commission also notes the concern raised by ADP that such an approach may have the unintended effect of preventing certain shareholders 28 In approving this proposal, the Commission has considered its impact on efficiency, competition and capital formation. 15 U.S.C. 78c(f). 29 15 U.S.C. 78f(b)(5). 30 The Commission notes that because U.S. companies listed on the Exchange must still distribute annual financial information as required by the Commission’s proxy solicitation rules, the Exchange’s proposed rule change will currently have minimal impact on U.S. issuers. See 17 CFR 240.14a–3. For foreign private issuers listed on the Exchange, however, the proposed rule change will eliminate the only mandated physical distribution requirement for annual financial statements. E:\FR\FM\29AUN1.SGM 29AUN1 Federal Register / Vol. 71, No. 167 / Tuesday, August 29, 2006 / Notices from obtaining annual financial information from listed companies.31 The Commission believes, however, that this risk is minimized by virtue of the fact that the proposed rule change requires the listed company to issue a press release simultaneously with the posting of the annual report stating that the annual report is available, listing the Web site where the annual report may be accessed, and requiring the listed company to send paper copies to those shareholders that request one within a reasonable time at no charge. The Commission believes that it is reasonable to assume that individual shareholders will follow the public announcements of those companies in which they own stock, and that these shareholders will either be able to access the Web site with the annual report or request a free paper copy if they wish. Further, as noted by one commenter on the proposal,32 because of existing Internet and EDGAR access to annual reports, the information received in hard copy can be ‘‘old news.’’ Indeed, information in the annual report can already be incorporated into the market price of the listed company’s stock by the time investors receive the hard copy.33 ADP also expressed concern that the proposed rule change is based upon an ‘‘access equals delivery’’ model of disclosure.34 The Commission notes that it considered the NYSE’s elimination of its annual report distribution requirement for listed companies under Section 19(b) of the Act.35 The Commission’s determination of what constitutes an appropriate SRO rule under Section 19(b) of the Act is distinct from the Commission’s consideration of rulemaking under the Act, and will not have any impact on the Commission’s consideration of the proposal concerning amendments to the proxy rules.36 31 See ADP Letter, supra note 5. Letter, supra note 5. 33 The Commission also notes that in its response letter, the NYSE stated that all of the comment letters, with the exception of ADP’s comment letter, were positive, that there were no negative comments from individual or institutional investors, and that the proposed rule change provides listed companies with an alternative to physical delivery, but that listed companies may continue to physically distribute annual reports if they so wish. 34 ADP Letter, supra note 5. 35 Section 19(b)(2) of the Act states, in pertinent part, that: ‘‘The Commission shall approve a proposed rule change of a self-regulatory organization if it finds that such proposed rule change is consistent with the requirements of this title and the rules and regulations thereunder applicable to such organization.’’ 15 U.S.C. 78s(b)(2). 36 See Securities Exchange Act Release No. 52926 (December 8, 2005), 70 FR 74598 (December 15, jlentini on PROD1PC65 with NOTICES 32 Coeur VerDate Aug<31>2005 17:07 Aug 28, 2006 Jkt 208001 In connection with the Exchange’s proposed amendments to the annual financial distribution requirements in Section 203.01 of the Listed Company Manual, the Commission notes that the Exchange has proposed conforming amendments to Section 203.01 and other sections of the Listed Company Manual. For example, the Exchange’s proposal would also eliminate the requirements currently contained in Section 203.01 that detail the procedures for physical distribution of the annual financial statements as well as the notice requirement that companies have followed if they could not meet these physical distribution requirements.37 Additionally, the Exchange proposes to eliminate provisions in Section 203.01 of the Listed Company Manual that detail the form and substance of the annual financial statements.38 The Commission notes that the Exchange has represented that the notice requirement for companies that fail to distribute annual financial statements is no longer necessary because the Exchange monitors listed companies for timely filing of their Commission reports on an ongoing basis.39 Given this monitoring, and the Exchange’s representation that it monitors listed companies for timely filing on an ongoing basis, the Commission believes this aspect of the proposed rule change is reasonable. The Commission believes that the Exchange’s deletion of the provisions of Section 203.01 of the Listed Company Manual regarding the form and substance of the annual financial statements eliminates duplicative, and potentially confusing, disclosure requirements for companies that are fully described in the Act.40 The Exchange also proposes to amend Section 103.00 of the Listed Company Manual to eliminate the requirement that foreign private issuers distribute at least summary annual reports to shareholders. The elimination of this requirement is consistent with the Exchange’s proposal in Section 203.01 of the Listed Company Manual because the Exchange is no longer requiring companies to physically distribute 2005) (proposing amendments to the proxy rules that would provide an alternative method for issuers and other persons to furnish proxy materials to shareholders by posting them on an Internet Web site and providing shareholders with notice of the availability of the proxy materials with copies being made available to shareholders on request, at no cost). 37 See Notice at 37148. 38 Id. 39 See Notice at 37153 (stating that the Exchange monitors listed companies for timely filing of their Commission reports on an ongoing basis). 40 See, e.g., 17 CFR 210.1–01 et seq. PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 51263 annual financial information to shareholders. The Commission notes that the Exchange’s proposal would still require foreign private issuers to send hard copies of the annual financial statements to shareholders, free of charge, upon request, within a reasonable period of time. The Exchange also proposes to delete Section 401.04 from the Listed Company Manual. In approving this portion of the proposed rule change, the Commission notes that the Exchange has specifically stated that it is not disavowing that best practice is for a listed company to hold its annual meeting within a reasonable time after the close of the company’s fiscal year.41 While the Commission also agrees that best practice is for a listed company to hold its annual meeting within a reasonable time after the close of its fiscal year, the Commission believes that it is not unreasonable for the Exchange to eliminate from the Listed Company Manual language that is, by its express terms, not an enforceable requirement, both to prevent confusion amongst listed companies and to reduce the Listed Company Manual to a codification of mandatory requirements for listed companies. Lastly, the Exchange proposes to eliminate certain provisions of Section 703.09 of the Listed Company Manual regarding disclosure of options, stock purchase and other remuneration plans. The Commission believes the Exchange’s deletion of these provisions from Section 703.09 of the Listed Company Manual is consistent with the Act since it eliminates duplicative, and potentially confusing, disclosure requirements for companies that are already more fully described in the Act.42 Notice of Filing of and Order Granting Accelerated Approval to Amendment No. 3 to the Proposed Rule Change In Amendment No. 3, the Exchange modified the proposal to provide that in the case of a listed company that is a closed-end fund, if the company does not maintain its own Web site, the company may utilize a Web site that the company is allowed to use to satisfy the Web site posting requirement in Rule 16a–3(k) of the Act.43 The Exchange also added a requirement that when a company issues the press release 41 See Notice, 71 FR at 37154 (stating that the Exchange is not disavowing that best practice is to hold the annual meeting within a reasonable interval after the close of the fiscal year). 42 See, e.g., 17 CFR 229.201(d) and 17 CFR 229.402. 43 17 CFR 240.16a–3(k); see also Amendment No. 3, supra note 6. E:\FR\FM\29AUN1.SGM 29AUN1 51264 Federal Register / Vol. 71, No. 167 / Tuesday, August 29, 2006 / Notices announcing that its annual report has been filed, it must also specify in the press release the Web site address where shareholders may access the annual report.44 The changes proposed by the Exchange in Amendment No. 3 respond to a concern raised by the ICI and are designed to ensure that the proposed rule change works as intended with respect to investment companies.45 The proposed change also improves the press release proposal by requiring that the Web site address where financial statement can be accessed be included in the press release. The Commission believes that these proposed changes strengthen the proposed rule change and do not raise any new regulatory issues beyond those raised by the original proposal. Therefore, the Commission finds good cause, consistent with Sections 19(b) and 6(b)(5) of the Act, to approve Amendment No. 3 to the proposed rule change prior to the 30th day after the amendment is published for comment in the Federal Register. V. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning Amendment No. 3, including whether Amendment No. 3 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 No. SR–NYSE–2005–68 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090. jlentini on PROD1PC65 with NOTICES 44 See Amendment No. 3, supra note 6. 45 The Commission notes that in its comment letter, the ICI’s proposed modifications to Section 303A.14 referred to ‘‘investment companies,’’ whereas the Exchange’s proposed rule text contained in Amendment No. 3 refers to ‘‘closedend funds.’’ See ICI Letter, supra note 5; see also Amendment No. 3, supra note 6. The Exchange has represented that the reason that it made this change to the ICI’s suggested language is because under the Exchange’s rules, the only listed ‘‘investment companies’’ to which the proposed rule change can apply are closed-end funds. See Telephone Conference between Annmarie Tierney, Assistant General Counsel, NYSE, and Raymond Lombardo, Special Counsel, Division of Market Regulation, Commission, on August 14, 2006. VerDate Aug<31>2005 17:07 Aug 28, 2006 Jkt 208001 All submissions should refer to File No. SR–NYSE–2005–68. 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. Copies of such filing will also be available for inspection and copying at the principal office of the NYSE. 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 No. SR–NYSE–2005–68 and should be submitted on or before September 19, 2006. VI. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,46 that the proposed rule change (SR–NYSE–2005– 68), as amended, is approved. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.47 Nancy M. Morris, Secretary. [FR Doc. E6–14276 Filed 8–28–06; 8:45 am] BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–54348; File No. SR– NYSEArca–2006–47] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Amendment No. 1 Thereto of Proposed Rule Change Relating to Voluntary Withdrawal Procedures by Listed Issuers August 22, 2006. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 46 15 47 17 PO 00000 U.S.C. 78s(b)(2). CFR 200.30–3(a)(12). Frm 00082 Fmt 4703 Sfmt 4703 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 notice is hereby given that on August 4, 2006, NYSE Arca, Inc. (‘‘NYSE Arca’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. On August 17, 2006, the Exchange filed Amendment No. 1 to the proposed rule change.3 The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change NYSE Arca, through its wholly-owned subsidiary NYSE Arca Equities, Inc. (‘‘NYSE Arca Equities’’ or ‘‘Corporation’’), proposes to amend NYSE Arca Equities Rule 5.4(b) relating to the voluntary withdrawal by issuers of their securities listed on NYSE Arca, L.L.C. (also referred to as the ‘‘NYSE Arca Marketplace’’), the equities trading facility of NYSE Arca Equities, including with respect to dually-listed issuers. Below is the text of the proposed rule change, as amended. Proposed new language is italics; proposed deletions are in brackets. * * * * * Rule 5 Listings * * * * * [Issuer Proposing to Withdraw] Rule 5.4(b). Issuer Proposing to Withdraw [An issuer proposing to withdraw a security from listing on the Corporation shall submit to the Corporation a certified copy of a resolution adopted by the board of directors of the issuer authorizing withdrawal from listing and registrations, a letter from an authorized officer of the issuer providing the specific reasons cited by the board of directors of the issuer for the proposed withdrawal, and a copy of the Form 25 that the issuer has filed with the Securities and Exchange Commission in accordance with Rule 12d2–2 promulgated under Section 12(d) of the Securities Exchange Act of 1934, as amended, no later than the date of such filing. The issuer may be required, under special circumstances, to submit the proposed withdrawal to the shareholders for their vote at a meeting 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 In Amendment No. 1, the Exchange replaced Exhibit 5 with the correct rule text and corrected a typographical error in the heading of Exhibit 1. 2 17 E:\FR\FM\29AUN1.SGM 29AUN1

Agencies

[Federal Register Volume 71, Number 167 (Tuesday, August 29, 2006)]
[Notices]
[Pages 51260-51264]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-14276]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54344; File No. SR-NYSE-2005-68]


Self-Regulatory Organizations; New York Stock Exchange, Inc. (n/
k/a New York Stock Exchange LLC); Order Approving Proposed Rule Change 
and Amendment No. 1 Thereto, and Notice of Filing and Order Granting 
Accelerated Approval to Amendment No. 3, Relating to Annual Financial 
Statement Distribution Requirements and Listed Company Manual Sections 
103.00, 202.05, 203.00, 203.01, 203.02, 203.03, 204.00 Through .33, 
303A.14, 313.00, 401.04, and 703.09

August 21, 2006.

I. Introduction

    On September 30, 2005, the New York Stock Exchange LLC (``NYSE'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``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 relating to the Exchange's annual financial 
statement distribution requirements and Listed Company Manual Sections 
103.00, 202.05, 203.00, 203.01, 203.02, 203.03, 204.00 through .33, 
303A.14, 313.00, 401.04, and 703.09. On June 9, 2006, the Exchange 
submitted Amendment No. 1 to the proposed rule change.\3\ The proposed 
rule change, as amended, was published for comment in the Federal 
Register on June 29, 2006.\4\ The Commission received five comments 
regarding the proposal.\5\ On August 10, 2006, the

[[Page 51261]]

Exchange filed Amendment No. 3 to the proposed rule change.\6\ On 
August 11, 2006, the Exchange submitted a letter to the Commission 
responding to the comments.\7\ This order approves the proposed rule 
change, as amended by Amendments Nos. 1 and 3, provides notice of 
Amendment No. 3, solicits comments from interested persons on Amendment 
No. 3, and grants accelerated approval of Amendment No. 3.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Amendment No. 1 dated June 9, 2006 (``Amendment No. 
1''). In Amendment No. 1, the Exchange eliminated from the present 
filing other proposed rule changes to Section 103 and 302 of the 
Listed Company Manual, and clarified certain details of its 
proposal.
    \4\ See Securities Exchange Act Release No. 54029 (June 21, 
2006), 71 FR 37147 (June 29, 2006) (``Notice'').
    \5\ See Letter from Richard J. Daly, Group Co-President, ADP 
Brokerage Services Group (``ADP''), to Nancy M. Morris, Secretary, 
Commission, dated July 20, 2006 (``ADP Letter''); Letter from 
Dorothy M. Donohue, Associate Counsel, Investment Company Institute, 
to Nancy M. Morris, Secretary, Commission, dated July 20, 2006 
(``ICI Letter''); Letter from David P. Cosper, Chief Financial 
Officer, Executive Vice President, Sonic Automotive, Inc., to Nancy 
M. Morris, Secretary, Commission, dated July 6, 2006 (``Sonic 
Letter''); Letter from Philip Broadley, Chair, The Hundred Group of 
Finance Directors, and Mark Harding, Chair, General Counsel 100 
Group, to Nancy M. Morris, Secretary, Commission, dated June 19, 
2006 (``Hundred Group Letter''); Letter from Scott Lamb, Vice 
President, Investor Relations, Coeur d'Alene Mines Corporation, to 
Jonathan G. Katz, Secretary, Commission, dated October 18, 2005 
(``Coeur Letter'').
    \6\ See Amendment No. 3 dated August 10, 2006 (``Amendment No. 
3''). In Amendment No. 3, the Exchange modified the proposed rule 
language in Section 303A.14 in response to the ICI Letter. ICI 
recommended that the Exchange modify the proposed rule change to 
make it clear that investment companies that do not have their own 
Web sites can use a related Web Site. See infra Part III. In 
Amendment No. 3, the Exchange also modified the proposed rule change 
to require that when a listed company issues a press release 
announcing the filing of its annual report with the Commission, that 
this press release also state the Web site where shareholders may 
access the annual report. The Exchange submitted Amendment No. 2 to 
the Commission on August 4, 2006 and withdrew Amendment No. 2 on 
August 10, 2006.
    \7\ See Letter from Mary Yeager, Assistant Secretary, NYSE, to 
Nancy M. Morris, Secretary, Commission, dated August 11, 2006 
(``NYSE Response Letter'').
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II. Description of the Proposal

    The Exchange proposes to amend Section 203.01 of the Listed Company 
Manual to allow a listed company to satisfy NYSE's annual financial 
statement distribution requirement by making the company's annual 
report on Form 10-K, 20-F, 40-F or N-CSR available on or by a link 
through its corporate Web site. In Amendment No. 3, the Exchange 
modified the proposal to provide that in the case of a listed company 
that is a closed-end fund, if the company does not maintain its own Web 
site, the company may utilize a Web site that the company is allowed to 
use to satisfy the Web site posting requirement in Rule 16a-3(k) of the 
Act.\8\ Included with this link or posting, the listed company must 
also include a prominent undertaking in English that it would deliver a 
paper copy of the company's complete audited financial statements free 
of charge to any shareholder who requests it. The Exchange would also 
require a listed company to issue a press release simultaneously with 
its Web site posting stating that its annual report has been filed with 
the Commission. This press release must also specify the company's Web 
site address \9\ and indicate that shareholders have the ability to 
receive a hard copy of the company's complete audited financial 
statements free of charge upon request within a reasonable period of 
time.
---------------------------------------------------------------------------

    \8\ 17 CFR 240.16a-3(k) states, in pertinent part, that: ``In 
the case of an issuer that is an investment company that does not 
maintain its own Web site; if any of the issuer's investment 
advisor, sponsor, depositor, trustee, administrator, principal 
underwriter, or any affiliated person of the investment company 
maintains a Web site that includes the name of the issuer, the 
issuer shall comply with the posting requirements by posting the 
forms on one such Web site.'' See also Amendment No. 3, supra note 
6.
    \9\ See Amendment No. 3, supra note 6.
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    The Exchange also proposes to amend Section 203.01 of the Listed 
Company Manual to eliminate the following provisions: (i) That a 
company inform the NYSE if it is unable to file its annual report with 
the Commission in a timely manner; (ii) that a company notify the NYSE 
prior to the filing deadline if it will not file its annual report with 
the Commission on time, as well as the language setting out the date by 
which a company must distribute its annual report once the late annual 
report has been filed with the Commission; (iii) the Exchange's 
requirements regarding the content of annual reports and annual 
financial statements; and (iv) requirements regarding the publication 
and distribution of annual financial statements.\10\
    The Exchange also proposes to amend Section 203.02 of the Listed 
Company Manual to consolidate and summarize the Exchange's reporting 
requirements for interim financial statements and to eliminate those 
provisions of Section 203.02 of the Listed Company Manual that are no 
longer applicable or that do not contain actual listing 
requirements.\11\
---------------------------------------------------------------------------

    \10\ See Notice at 37148-49.
    \11\ See id. at 37149-50.
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    The Exchange also proposes to amend Section 103.00 of the Listed 
Company Manual to eliminate the requirement that foreign private 
issuers distribute to shareholders at least a summary annual report 
that includes summary financial information reconciled to U.S. 
generally accepted accounting principles and provide a full annual 
report to shareholders upon request, as well the requirement that a 
company that proposes to distribute a summary annual report contact an 
Exchange representative to determine whether the proposed use of the 
summary annual report meets the Exchange's requirements. NYSE also 
proposes to eliminate language from the first and sixth paragraphs of 
Section 103.00 of the Listed Company Manual to the extent that such 
language does not set forth actual listing requirements.\12\
---------------------------------------------------------------------------

    \12\ See id. at 37147-48.
---------------------------------------------------------------------------

    The Exchange also proposes conforming amendments to Sections 
202.05, 203.03, 204.00 through .33 and 313.00 of the Listed Company 
Manual.\13\ These amendments include renumbering of sections and the 
elimination of references to annual report obligations throughout the 
Listed Company Manual, including with respect to procedures relating to 
the distribution of annual reports.
---------------------------------------------------------------------------

    \13\See id. at 37148, 37150-51.
---------------------------------------------------------------------------

    The Exchange also proposes to amend Section 204.00 of the Listed 
Company Manual to consolidate the requirements for companies to provide 
notice to and file certain documents with the Exchange.\14\ In 
particular, the Exchange proposes to limit the need for companies to 
provide information to the Exchange that is available via the 
Commission's Electronic Data Gathering Analysis and Retrieval (EDGAR) 
system. The Exchange also proposes to eliminate certain explanatory 
language from Section 204.00 of the Listed Company Manual that the 
Exchange represented to be superfluous as a result of the proposed 
changes.
---------------------------------------------------------------------------

    \14\ See id. at 37150-51.
---------------------------------------------------------------------------

    The Exchange also proposes to add a new Section 303A.14 to the 
Listed Company Manual that specifically requires listed companies to 
have and maintain a Web site.\15\ This proposed section also includes 
the information required under Section 303A of the Listed Company 
Manual that listed companies must post to their Web sites, including 
committee charters, corporate governance guidelines and their code of 
business conduct and ethics. In Amendment No. 3, the Exchange modified 
the proposal to provide that in the case of a listed company that is a 
closed-end fund, if the company does not maintain its own Web site, the 
company may utilize a Web site that the company is allowed to use to 
satisfy the Web site posting requirement in Rule 16a-3(k) of the 
Act.\16\
---------------------------------------------------------------------------

    \15\ See id. at 37150-51.
    \16\ See id. at 37151.
---------------------------------------------------------------------------

    The Exchange also proposes to eliminate Section 401.04 of the 
Listed Company Manual which provides guidance regarding the interval 
between

[[Page 51262]]

the end of a listed company's fiscal year and its annual meeting of 
shareholders.\17\ Lastly, the Exchange proposes to amend Section 703.09 
of the Listed Company Manual to eliminate requirements relating to the 
disclosure of options, stock purchase and other remuneration plans.\18\
---------------------------------------------------------------------------

    \17\ See id. at 37152.
    \18\ See id.
---------------------------------------------------------------------------

III. Comments

    The Commission received five comment letters regarding the 
proposal.\19\ Four comment letters supported the Exchange's proposed 
rule change. The ICI stated that the Exchange's proposal was ``highly 
appropriate'' given the tremendous growth in the Internet and its 
importance to investors as an information source.\20\ The ICI also 
stated that internet access provides a more efficient way to access the 
reports, as well the ability to search in the reports for information 
of particular interest to investors. Finally, the ICI recommended that 
in the case of an investment company that does not maintain its own Web 
site, the investment company make its annual report available on, or by 
a link through, a Web site maintained, for example, by the company's 
investment adviser.\21\
---------------------------------------------------------------------------

    \19\ See Supra note 5.
    \20\ ICI Letter, supra note 5.
    \21\ Id.; see also Amendment No. 3, Supra note 6.
---------------------------------------------------------------------------

    Another commenter, Sonic Automotive, an NYSE-listed company, 
commented that it was sensible to deliver information in the most 
expeditious and efficient manner in a day and age of instant 
communications.\22\ Coeur d'Alene Mines Corporation, also an NYSE-
listed company, expressed support for the proposal, citing its own 
experience that most investors prefer the immediacy and ease of access 
associated with electronic delivery, and that the rule change would 
permit it to materially reduce costs associated with distributing the 
annual report.\23\ This commenter also noted that the company's annual 
report and other Commission filings are already routinely available on 
or through the company's Web site, and on other sites such as EDGAR, 
long before they are available through mass mailings or individual 
mailings. In this regard, the commenter noted that each year's newly 
published annual report is already ``old news'' by the time it arrives 
in an investor's mailbox. Another commenter expressed the view that 
shareholders prefer immediately available electronic information, and 
that hard copies provided later are of limited use.\24\ Moreover, this 
commenter stated that these benefits would be achieved while allowing 
for a ``significant'' cost reduction for foreign private issuers listed 
on the Exchange.
---------------------------------------------------------------------------

    \22\ Sonic Automotive Letter, supra note 5.
    \23\ Coeur Letter, supra note 5.
    \24\ Hundred Group Letter, supra note 5. This commenter also 
noted that its clientele, many publicly traded United Kingdom 
companies, must incur the costs of distributing two annual reports 
to shareholders, one consisting of the annual report and accounts 
required under the relevant U.K. laws, and the other containing 
financial statements reconciled to U.S. GAAP.
---------------------------------------------------------------------------

    One commenter, ADP, opposed the proposed rule change.\25\ ADP 
argued that the Exchange's proposal to eliminate the annual financial 
statement distribution requirement in Section 203.01 of the Listed 
Company Manual could have adverse affects on U.S. holders of securities 
of NYSE-listed foreign private issuers. ADP expressed a broad concern 
regarding the ``access equals delivery'' model upon which the proposed 
amendments are based, and stated that the Exchange has proposed making 
the change to Section 203.01 in the absence of any meaningful data 
supporting its underlying premise. ADP disagrees with the Exchange's 
belief that the vast majority of people in this country that review 
company financials access them online--either through the company's own 
Web site, EDGAR, or some other service provider. In particular, ADP 
asserted that (i) fewer shareholders would have access to annual 
financial statements, (ii) fewer shareholders would look at annual 
financial statements, (iii) more votes being cast without the benefit 
of financial statement review, and (iv) costs would be shifted to 
shareholders.\26\
---------------------------------------------------------------------------

    \25\ ADP Letter, supra note 5.
    \26\ Id.
---------------------------------------------------------------------------

    The Exchange responded by stating that the Commission did not 
receive any negative comment letters from a retail or institutional 
investor with respect to the proposed rule change.\27\ The Exchange 
also noted that the proposed rule change would not confine investors to 
online access. Rather, the Exchange explained that the proposed rule 
requires listed companies to issue a press release to inform investors 
that the annual report filed with the Commission is available on the 
listed company's Web site, and that the Exchange will also require that 
shareholders have the ability to receive a hard copy of the complete 
audited financial statements free of charge upon request within a 
reasonable period of time. Finally, the NYSE noted that the proposed 
rule change simply provides listed companies with an alternative to 
physical delivery, and that a listed company may continue to physically 
distribute an annual report if it wishes to do so.
---------------------------------------------------------------------------

    \27\ See NYSE Response Letter, supra note 7.
---------------------------------------------------------------------------

IV. Discussion

    After careful consideration of the proposal and the comments 
received, the Commission finds that the proposed rule change, as 
amended, is consistent with the requirements of the Act and the rules 
and regulations thereunder applicable to a national securities 
exchange.\28\ Specifically, the Commission finds that the proposal, as 
amended, is consistent with Section 6(b)(5) of the Act,\29\ which 
requires, among other things, that the rules of a national securities 
exchange be designed to promote just and equitable principles of trade, 
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.
---------------------------------------------------------------------------

    \28\ In approving this proposal, the Commission has considered 
its impact on efficiency, competition and capital formation. 15 
U.S.C. 78c(f).
    \29\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    With respect to the Exchange's proposal to amend Section 203.01 of 
its Listed Company Manual to allow companies to satisfy the Exchange's 
annual financial distribution requirement by making the company's 
annual report on Form 10-K, 20-F, 40-F or N-CSR available on its 
corporate Web site, the Exchange and several of the commenters have 
stated that the new rule will be a more efficient way for listed 
companies to deliver, and shareholders to utilize, annual financial 
statements.\30\ The Commission believes that electronic delivery may 
offer shareholders immediate access to financial information and 
greater ability to search such information. The Commission also 
believes that the proposed rule change may lead to significant cost 
savings for listed companies, savings that will ultimately accrue to 
those companies' shareholders.
---------------------------------------------------------------------------

    \30\ The Commission notes that because U.S. companies listed on 
the Exchange must still distribute annual financial information as 
required by the Commission's proxy solicitation rules, the 
Exchange's proposed rule change will currently have minimal impact 
on U.S. issuers. See 17 CFR 240.14a-3. For foreign private issuers 
listed on the Exchange, however, the proposed rule change will 
eliminate the only mandated physical distribution requirement for 
annual financial statements.
---------------------------------------------------------------------------

    The Commission also notes the concern raised by ADP that such an 
approach may have the unintended effect of preventing certain 
shareholders

[[Page 51263]]

from obtaining annual financial information from listed companies.\31\ 
The Commission believes, however, that this risk is minimized by virtue 
of the fact that the proposed rule change requires the listed company 
to issue a press release simultaneously with the posting of the annual 
report stating that the annual report is available, listing the Web 
site where the annual report may be accessed, and requiring the listed 
company to send paper copies to those shareholders that request one 
within a reasonable time at no charge. The Commission believes that it 
is reasonable to assume that individual shareholders will follow the 
public announcements of those companies in which they own stock, and 
that these shareholders will either be able to access the Web site with 
the annual report or request a free paper copy if they wish. Further, 
as noted by one commenter on the proposal,\32\ because of existing 
Internet and EDGAR access to annual reports, the information received 
in hard copy can be ``old news.'' Indeed, information in the annual 
report can already be incorporated into the market price of the listed 
company's stock by the time investors receive the hard copy.\33\
---------------------------------------------------------------------------

    \31\ See ADP Letter, supra note 5.
    \32\ Coeur Letter, supra note 5.
    \33\ The Commission also notes that in its response letter, the 
NYSE stated that all of the comment letters, with the exception of 
ADP's comment letter, were positive, that there were no negative 
comments from individual or institutional investors, and that the 
proposed rule change provides listed companies with an alternative 
to physical delivery, but that listed companies may continue to 
physically distribute annual reports if they so wish.
---------------------------------------------------------------------------

    ADP also expressed concern that the proposed rule change is based 
upon an ``access equals delivery'' model of disclosure.\34\ The 
Commission notes that it considered the NYSE's elimination of its 
annual report distribution requirement for listed companies under 
Section 19(b) of the Act.\35\ The Commission's determination of what 
constitutes an appropriate SRO rule under Section 19(b) of the Act is 
distinct from the Commission's consideration of rulemaking under the 
Act, and will not have any impact on the Commission's consideration of 
the proposal concerning amendments to the proxy rules.\36\
---------------------------------------------------------------------------

    \34\ ADP Letter, supra note 5.
    \35\ Section 19(b)(2) of the Act states, in pertinent part, 
that: ``The Commission shall approve a proposed rule change of a 
self-regulatory organization if it finds that such proposed rule 
change is consistent with the requirements of this title and the 
rules and regulations thereunder applicable to such organization.'' 
15 U.S.C. 78s(b)(2).
    \36\ See Securities Exchange Act Release No. 52926 (December 8, 
2005), 70 FR 74598 (December 15, 2005) (proposing amendments to the 
proxy rules that would provide an alternative method for issuers and 
other persons to furnish proxy materials to shareholders by posting 
them on an Internet Web site and providing shareholders with notice 
of the availability of the proxy materials with copies being made 
available to shareholders on request, at no cost).
---------------------------------------------------------------------------

    In connection with the Exchange's proposed amendments to the annual 
financial distribution requirements in Section 203.01 of the Listed 
Company Manual, the Commission notes that the Exchange has proposed 
conforming amendments to Section 203.01 and other sections of the 
Listed Company Manual. For example, the Exchange's proposal would also 
eliminate the requirements currently contained in Section 203.01 that 
detail the procedures for physical distribution of the annual financial 
statements as well as the notice requirement that companies have 
followed if they could not meet these physical distribution 
requirements.\37\ Additionally, the Exchange proposes to eliminate 
provisions in Section 203.01 of the Listed Company Manual that detail 
the form and substance of the annual financial statements.\38\ The 
Commission notes that the Exchange has represented that the notice 
requirement for companies that fail to distribute annual financial 
statements is no longer necessary because the Exchange monitors listed 
companies for timely filing of their Commission reports on an ongoing 
basis.\39\ Given this monitoring, and the Exchange's representation 
that it monitors listed companies for timely filing on an ongoing 
basis, the Commission believes this aspect of the proposed rule change 
is reasonable. The Commission believes that the Exchange's deletion of 
the provisions of Section 203.01 of the Listed Company Manual regarding 
the form and substance of the annual financial statements eliminates 
duplicative, and potentially confusing, disclosure requirements for 
companies that are fully described in the Act.\40\
---------------------------------------------------------------------------

    \37\ See Notice at 37148.
    \38\ Id.
    \39\ See Notice at 37153 (stating that the Exchange monitors 
listed companies for timely filing of their Commission reports on an 
ongoing basis).
    \40\ See, e.g., 17 CFR 210.1-01 et seq.
---------------------------------------------------------------------------

    The Exchange also proposes to amend Section 103.00 of the Listed 
Company Manual to eliminate the requirement that foreign private 
issuers distribute at least summary annual reports to shareholders. The 
elimination of this requirement is consistent with the Exchange's 
proposal in Section 203.01 of the Listed Company Manual because the 
Exchange is no longer requiring companies to physically distribute 
annual financial information to shareholders. The Commission notes that 
the Exchange's proposal would still require foreign private issuers to 
send hard copies of the annual financial statements to shareholders, 
free of charge, upon request, within a reasonable period of time.
    The Exchange also proposes to delete Section 401.04 from the Listed 
Company Manual. In approving this portion of the proposed rule change, 
the Commission notes that the Exchange has specifically stated that it 
is not disavowing that best practice is for a listed company to hold 
its annual meeting within a reasonable time after the close of the 
company's fiscal year.\41\ While the Commission also agrees that best 
practice is for a listed company to hold its annual meeting within a 
reasonable time after the close of its fiscal year, the Commission 
believes that it is not unreasonable for the Exchange to eliminate from 
the Listed Company Manual language that is, by its express terms, not 
an enforceable requirement, both to prevent confusion amongst listed 
companies and to reduce the Listed Company Manual to a codification of 
mandatory requirements for listed companies.
---------------------------------------------------------------------------

    \41\ See Notice, 71 FR at 37154 (stating that the Exchange is 
not disavowing that best practice is to hold the annual meeting 
within a reasonable interval after the close of the fiscal year).
---------------------------------------------------------------------------

    Lastly, the Exchange proposes to eliminate certain provisions of 
Section 703.09 of the Listed Company Manual regarding disclosure of 
options, stock purchase and other remuneration plans. The Commission 
believes the Exchange's deletion of these provisions from Section 
703.09 of the Listed Company Manual is consistent with the Act since it 
eliminates duplicative, and potentially confusing, disclosure 
requirements for companies that are already more fully described in the 
Act.\42\
---------------------------------------------------------------------------

    \42\ See, e.g., 17 CFR 229.201(d) and 17 CFR 229.402.
---------------------------------------------------------------------------

Notice of Filing of and Order Granting Accelerated Approval to 
Amendment No. 3 to the Proposed Rule Change

    In Amendment No. 3, the Exchange modified the proposal to provide 
that in the case of a listed company that is a closed-end fund, if the 
company does not maintain its own Web site, the company may utilize a 
Web site that the company is allowed to use to satisfy the Web site 
posting requirement in Rule 16a-3(k) of the Act.\43\ The Exchange also 
added a requirement that when a company issues the press release

[[Page 51264]]

announcing that its annual report has been filed, it must also specify 
in the press release the Web site address where shareholders may access 
the annual report.\44\
---------------------------------------------------------------------------

    \43\ 17 CFR 240.16a-3(k); see also Amendment No. 3, supra note 
6.
    \44\ See Amendment No. 3, supra note 6.
---------------------------------------------------------------------------

    The changes proposed by the Exchange in Amendment No. 3 respond to 
a concern raised by the ICI and are designed to ensure that the 
proposed rule change works as intended with respect to investment 
companies.\45\ The proposed change also improves the press release 
proposal by requiring that the Web site address where financial 
statement can be accessed be included in the press release. The 
Commission believes that these proposed changes strengthen the proposed 
rule change and do not raise any new regulatory issues beyond those 
raised by the original proposal. Therefore, the Commission finds good 
cause, consistent with Sections 19(b) and 6(b)(5) of the Act, to 
approve Amendment No. 3 to the proposed rule change prior to the 30th 
day after the amendment is published for comment in the Federal 
Register.
---------------------------------------------------------------------------

    \45\ The Commission notes that in its comment letter, the ICI's 
proposed modifications to Section 303A.14 referred to ``investment 
companies,'' whereas the Exchange's proposed rule text contained in 
Amendment No. 3 refers to ``closed-end funds.'' See ICI Letter, 
supra note 5; see also Amendment No. 3, supra note 6. The Exchange 
has represented that the reason that it made this change to the 
ICI's suggested language is because under the Exchange's rules, the 
only listed ``investment companies'' to which the proposed rule 
change can apply are closed-end funds. See Telephone Conference 
between Annmarie Tierney, Assistant General Counsel, NYSE, and 
Raymond Lombardo, Special Counsel, Division of Market Regulation, 
Commission, on August 14, 2006.
---------------------------------------------------------------------------

V. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning Amendment No. 3, including whether Amendment No. 3 
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 No. SR-NYSE-2005-68 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File No. SR-NYSE-2005-68. 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. Copies of such 
filing will also be available for inspection and copying at the 
principal office of the NYSE. 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 No. SR-NYSE-2005-68 and should be submitted on or before September 
19, 2006.

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\46\ that the proposed rule change (SR-NYSE-2005-68), as amended, 
is approved.
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    \46\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\47\
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    \47\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. E6-14276 Filed 8-28-06; 8:45 am]
BILLING CODE 8010-01-P