Self-Regulatory Organizations; American Stock Exchange LLC; Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto Relating to Reverse Mergers, 13542-13543 [E7-5206]

Agencies

• SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 72, Number 55 (Thursday, March 22, 2007)]
[Notices]
[Pages 13542-13543]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-5206]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55477; File No. SR-Amex-2006-99]


Self-Regulatory Organizations; American Stock Exchange LLC; 
Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto 
Relating to Reverse Mergers

March 15, 2007.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 
1934, as amended (the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice 
is hereby given that on October 5, 2006, the American Stock Exchange 
LLC (the ``Amex'' or the ``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 February 14, 2007, 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.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 makes revisions to the proposed rule text, 
including revisions conforming the proposed rule text to a filing 
submitted by The NASDAQ Stock Market LLC (``Nasdaq'') and approved 
by the Commission in the period following submission of the original 
filing (Securities Exchange Act Release No. 55052 (January 5, 2007), 
72 FR 1569 (January 12, 2007) (SR-NASDAQ-2006-047)) and revisions 
incorporating an immediately effective filing submitted by Amex in 
the same period (Securities Exchange Act Release No. 55096 (January 
12, 2007), 72 FR 2563 (January 19, 2007) (SR-Amex-2007-03)). 
Amendment No. 1 replaces and supersedes the original filing in its 
entirety.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend (i) Section 341 of the Amex Company 
Guide to clarify the circumstances under which a listed issuer will be 
deemed to have engaged in a reverse merger thereby requiring the post-
transaction entity to satisfy the initial listing standards and the 
process a listed issuer must follow when applying for initial listing 
in connection with a reverse merger and (ii) Section 713 of the Amex 
Company Guide to require shareholder approval in connection with the 
issuance or potential issuance of additional listed securities that 
will result in a change of control of a listed issuer.
    The text of the proposed rule change is available on the Amex's Web 
site at https://www.amex.com, the Office of the Secretary, the Amex 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Section 341 of the Amex Company Guide currently provides that if an 
issuer listed on the Amex engages in any plan of acquisition, merger or 
consolidation, the net effect of which is that the listed issuer is 
acquired by an unlisted entity, even if the listed issuer is the 
nominal survivor, the post-transaction entity is required to satisfy 
the initial listing standards. Such transactions are typically referred 
to as ``Reverse Mergers.'' Because the issuer resulting from a Reverse 
Merger is essentially a different entity from the listed issuer, 
Section 341 does not permit the post-transaction entity to remain 
listed on the Amex unless it qualifies as a new listing. This 
prohibition is intended to prevent ``back door listings'' whereby an 
unqualified entity attempts to obtain an Amex listing. Both the New 
York Stock Exchange LLC (``NYSE'') \4\ and Nasdaq \5\ have comparable 
provisions.
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    \4\ Section 703.08(E) of the NYSE Listed Company Manual.
    \5\ Nasdaq Rule 4340(a).
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    Many Reverse Mergers are entered into for bona fide business 
reasons, however, in some cases listed issuers that are not in 
compliance with the continued listing standards, and face potential 
delisting, attempt to enter into Reverse Mergers with private entities 
in order to retain their Amex listing. In other situations, a listed 
issuer may be in compliance with the continued listing standards but 
the post-transaction entity would not satisfy the initial listing 
standards. In both of these cases, a change of control occurs but the 
listed issuer attempts to structure the transaction so that it will not 
be deemed a Reverse Merger under the current rule.
    The Exchange proposes amending Section 341 to provide greater 
clarity and transparency as to (i) what constitutes a Reverse Merger, 
(ii) the factors the Exchange will consider in determining whether a 
transaction or series of transactions constitute(s) a Reverse Merger, 
(iii) the consequences of entering into a Reverse Merger and (iv) the 
process a listed issuer must follow in connection with a Reverse 
Merger. The proposed rule change will provide that, in addition to 
meeting the initial listing standards, a listed company entering into a 
Reverse Merger will need to obtain shareholder approval in accordance 
with Section 713 in order to issue additional listed securities in 
connection with such Reverse Merger. In addition, while the 
determination of whether a Reverse Merger has occurred or will occur is 
to some degree subjective, the Exchange proposes to amend Section 341 
to more clearly delineate the factors that will be considered by the 
Exchange in its analysis of a transaction.\6\
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    \6\ The Exchange's proposed Section 341 states that a ``Reverse 
Merger'' is: ``any plan of acquisition, merger or consolidation 
whereby a listed company combines with, or into, a company not 
listed on the Exchange, resulting in a change of control of the 
listed company and potentially allowing such unlisted company to 
obtain an Exchange listing. In determining whether a change of 
control constitutes a Reverse Merger, the Exchange will consider all 
relevant factors, including, but not limited to, changes in the 
management, board of directors, voting power, ownership, and 
financial structure of the listed company. The Exchange will also 
consider the nature of the businesses and the relative size of both 
the listed and the unlisted companies.'' See proposed Section 341 of 
the Amex Company Guide.
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    With regards to the process to be followed by listed issuers in 
connection with Reverse Mergers, Section 341

[[Page 13543]]

currently recommends that listed issuers submit any proposed plan which 
could constitute a Reverse Merger to the Exchange for an informal 
opinion prior to the plan's promulgation. The intent of such provision 
is to permit Exchange staff to review the proposed transaction in order 
to determine if it constitutes a Reverse Merger and, in the case of a 
Reverse Merger, to review the post-transaction entity in order to 
confirm that it will meet initial listing standards. The Exchange 
proposes to make such process more transparent by requiring a listed 
issuer to submit an initial listing application with sufficient time to 
permit the Exchange to complete its review of the post-transaction 
entity and providing that delisting proceedings will be commenced if 
such initial listing application has not been approved prior to 
consummation of the Reverse Merger. The Commission approved a similar 
rule change filed by Nasdaq.\7\
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    \7\ See supra note 3.
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    In association with the proposed changes to Section 341, the 
Exchange also proposes to amend Section 713. Section 713 currently 
requires shareholder approval as a prerequisite to Exchange approval of 
applications to list additional shares issued in connection with a 
transaction (other than a public offering) which would involve the 
application of the initial listing standards as described in Section 
341. The Exchange proposes revising Section 713 to require shareholder 
approval as a prerequisite to Exchange approval of additional listing 
applications when the issuance or potential issuance of additional 
securities will result in a change of control of a listed issuer, 
regardless of whether such change of control also constitutes a Reverse 
Merger. Additionally, the Exchange proposes changes to Sections 341 and 
713 to clarify the relationship between their respective requirements. 
Both NYSE \8\ and Nasdaq \9\ require shareholder approval under such 
circumstances and the Exchange believes it is necessary and appropriate 
to require listed issuers to obtain shareholder approval of any 
issuance or potential issuance of additional listed securities that 
will result in a change of control. The proposed rule change will 
provide investors of listed issuers with more input and participation 
with respect to such decisions.
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    \8\ Section 312.03(d) of the NYSE Listed Company Manual.
    \9\ Nasdaq Rule 4350(i)(1)(B).
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2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the 
Act,\10\ in general, and furthers the objectives of Section 6(b)(5) of 
the Act,\11\ in particular, in that it is designed to prevent 
fraudulent and manipulative acts and practices, 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.
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    \10\ 15 U.S.C. 78f(b).
    \11\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The proposed rule change does not impose any burden on competition 
that is not necessary or appropriate in furtherance of the purposes of 
the Act. Instead, the Exchange believes that the proposed rule change 
will promote greater uniformity with the listing standards of other 
markets.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    No written comments were solicited or received with respect to the 
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the Exchange consents, the Commission will:
    (A) By order approve such proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (https://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to rulecomments@sec.gov. Please include 
File Number SR-Amex-2006-99 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 Number SR-Amex-2006-99. 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 Amex. 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-Amex-2006-99 and should be submitted on or before April 
12, 2007.

    For the Commission by the Division of Market Regulation, 
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-5206 Filed 3-21-07; 8:45 am]
BILLING CODE 8010-01-P