Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change, as Modified by Amendment No. 1, To Modify Its Policy With Respect to Legal Opinions in Connection With Listings of Securities, 57397-57399 [E8-23193]
Download as PDF
<![CDATA[
Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Notices
FINRA responded that under the
proposed rule change, firms that
previously certified on or near April 1
may continue to do so, so long as the
certification is executed no later than
the anniversary of the prior year’s
certification.12 Furthermore, FINRA
indicated that the commenter’s concern
appears to result from the mistaken
assumption that firms that are members
of both FINRA and the NYSE must
couple the CEO certification with the
annual compliance report that is
required to be submitted each year on
April 1 under Incorporated NYSE Rule
342.30. FINRA stated that a firm may
choose to time the process of the CEO
certification so that it coincides with the
Annual Compliance Report
requirement, but that the proposed rule
change does not compel this outcome,
thus giving a firm flexibility as to when
the certification process begins and
ends. In addition, FINRA indicated that
the commenter did not adequately
consider the needs of FINRA-only firms
that have chosen a cycle other than
April 1 that better meets their
organizational structure and
procedures.13
The second commenter asserted that
NASD Rule 3013 is unworkable and
ineffectual for small FINRA member
firms and urged FINRA to adopt a small
firm exemption as part of the
proposal.14 The commenter stated that
the provision requiring the CEO and
CCO to meet to discuss and review
elements related to the certification is
unworkable for small firms when the
CEO and CCO are the same person.
FINRA indicated that it expects that a
person who is both CEO and CCO of a
firm will contemplate the required
topics of the meeting and document that
he or she has reviewed those matters.15
IV. Discussion and Findings
After careful review of the proposed
rule change, the comment letters and
FINRA’s response to the comment
letters, the Commission finds that the
proposed rule change is consistent with
the requirements of the Act, and the
rules and regulations thereunder that
are applicable to national securities
associations,16 and in particular,
Section 15A(b)(6) of the Act,17 which
12 FINRA
Letter.
mstockstill on PROD1PC66 with NOTICES
13 Id.
14 IMS Letter. IMS also commented on the
requirements of NASD Rule 3012, which is not part
of the proposal.
15 FINRA Letter.
16 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).
17 15 U.S.C. 78o–3(b)(6).
VerDate Aug<31>2005
17:52 Oct 01, 2008
Jkt 217001
requires among other things, that FINRA
rules be designed to prevent fraudulent
and manipulative acts and practices, to
promote just and equitable principles of
trade, and, in general to protect
investors and the public interest. The
Commission believes that it is
reasonable for FINRA to adopt NASD
Rule 3013 and IM–3013 as FINRA Rule
3130 in the Consolidated FINRA
Rulebook because they have previously
been found to meet statutory
requirements.18
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act, that the
proposed rule change (SR–FINRA–
2008–030) be, and it hereby is,
approved.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.19
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8–23197 Filed 10–1–08; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–58649; File No. SR–NYSE–
2008–82]
Self-Regulatory Organizations; New
York Stock Exchange LLC; Notice of
Filing and Immediate Effectiveness of
a Proposed Rule Change, as Modified
by Amendment No. 1, To Modify Its
Policy With Respect to Legal Opinions
in Connection With Listings of
Securities
57397
September 21, 2008, the Exchange filed
Amendment No. 1 to the proposed rule
change.3 The Commission is publishing
this notice, as amended, to solicit
comments on the proposal from
interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
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 III below. The
Exchange has prepared summaries, set
forth in Sections A, B, and C below, of
the most significant aspects of such
statements.
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 III below. The
Exchange has prepared summaries, set
forth in Sections A, B, and C below, of
the most significant aspects of such
statements.
September 25, 2008.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (the
‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on
September 9, 2008, New York Stock
Exchange LLC (‘‘NYSE’’ or ‘‘the
Exchange’’) filed with the Securities and
Exchange Commission (the
‘‘Commission’’) the proposed rule
change as described in Items I, II, and
III below, which Items have been
prepared by the Exchange. On
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange proposes to amend the
Manual by removing the provisions
throughout Chapter Seven that require
issuers to supply opinions of counsel to
the Exchange in connection with any
initial listing application or
supplemental listing application.4
18 See e.g. Securities Exchange Act Release No.
53509 (March 17, 2006), 71 FR 15238 (March 27,
2006) (SR–NASD–2006–036) (order approving rule
change to IM–3013 finding that the proposed
change furthered investor protection goals and
provided clarity regarding application of the rule);
Securities Exchange Act Release No. 56285 (August
17, 2007), 72 FR 48715 (August 24, 2007) (SR–
NASD–2007–049) (order approving rule change to
NASD Rule 3013 and IM–3013 finding that the
proposed changes decreased the likelihood of fraud
and manipulative acts in addition to increasing
investor protection).
19 17 CFR 200.30–3(a)(12).
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
PO 00000
Frm 00080
Fmt 4703
Sfmt 4703
3 In Amendment No. 1, the Exchange made
technical, non-substantive corrections to Exhibits 3
and 5.
4 This filing deletes references to the opinion of
counsel requirements from the ‘‘Reference Guide
For Subsequent Listing Applications’’ section at the
front of the Manual and replaces them with a
requirement (i) furnish the Exchange with copies of
opinions of counsel filed in connection with recent
public offerings or (ii) if no opinions of counsel
exist, provide to the Exchange a certificate of good
standing from the company’s jurisdiction of
incorporation. In addition, the filing makes the
same modification to the following sections of the
Manual: 702.04 (Supporting Documents); 703.01
(part 2) (General Information); 703.02 (part 3) (Stock
Split/Stock Rights/Stock Dividend Listing Process);
703.03 (Short Term Rights Offerings Relating to
E:\FR\FM\02OCN1.SGM
Continued
02OCN1
57398
Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Notices
mstockstill on PROD1PC66 with NOTICES
Exchange rules have long required the
delivery of an opinion of counsel
addressed to the Exchange in
connection with each application to list
securities, including applications to list
additional shares of a previously listed
class.5 The Exchange believes that its
opinion requirement is duplicative of
several safeguards that now exist to
protect investors in listed securities. In
particular, an issuer’s independent
auditor reviews the issuance of
securities as part of its annual audit.
Additionally, the underwriters of
securities sold in a public offering
receive legal opinions as to the validity
of the issuance of the securities they
purchase, as well as performing their
own due diligence on the company and
the securities. Furthermore, a legal
opinion as to the legality of the issuance
of the securities being registered is
delivered to the SEC in connection with
the filing of any registration statement.
Accordingly, the Exchange proposes to
Listed Securities Listing Process); 703.04 (Public
Offerings and Private Placement of Common Stock
Listing Process); 703.05 (Preferred Stock Offerings
Listing Process); 703.06 (Debt Securities Offerings
Listing Process); 703.07 (Reserves for Convertible
Securities Listing Process); 703.08 (Mergers,
Acquisitions and Other Business Combinations
Listing Process); 703.09 (Stock Option, Stock
Purchase and Other Remuneration Plans Listing
Process); 703.10 (Technical Original Listing
Process); 703.11 (Supplemental Listing Process);
703.12 (Warrants Listing Standards); 703.13
(‘‘Special Stocks’’ Listing Process (Stocks Which
Have Periodic Increases in Conversion Rate Into
Common Stock)); 703.14 (Voting Trust Certificate
Listing Process); and 903.01 (Format of Original
Listing Application).
5 In connection with the listing of equity
securities, including rights, warrants, preferred
stock, options, etc., the required opinion (as set
forth in Section 702.04) relates to: (i) The legality
of organization of the company; (ii) the
authorization of the issuance of the securities for
which listing application is made; (iii) the validity
of such securities; (iv) whether shares are, or will
be when issued, fully-paid and non-assessable; (v)
whether shareholders are personally liable under
the laws of the jurisdiction in which the company
is organized and the jurisdiction in which its
principal place of business is located; (vi) the date
and nature of any order or proceeding of any
Federal or State regulatory authority prerequisite to
issuance of any unissued securities covered by the
application and, if such steps have not been
completed, the present status thereof; (vii) whether
the shares require registration under the Federal
securities laws and, if so, a statement that the shares
are so registered; and (viii) if counsel, any partner
of such counsel, or any member of a firm rendering
the opinion is a director or officer of the company,
that fact is required to be disclosed in the opinion.
In the case of debt securities, Section 703.06(G)
requires an opinion of counsel addressing: (i) The
legality of organization of the company; (ii) the
authorization by the Board of Directors, in
accordance with Exchange policy, of the issuance
and listing of the securities for which the listing
application is made; (iii) the validity of such
securities; qualification of the indenture under the
Trust Indenture Act of 1939; and (iv) effectiveness
of registration of the securities under the Securities
Act of 1933, or, if not registered, the reasons why
not.
VerDate Aug<31>2005
17:52 Oct 01, 2008
Jkt 217001
end its policy of requiring legal
opinions in connection with listing
applications, including applications to
list additional shares of a previously
listed class. In lieu of the existing
opinion requirements, the Exchange
will require issuers to (i) furnish the
Exchange with copies of opinions of
counsel filed in connection with recent
public offerings or (ii) if no opinions of
counsel exist, provide to the Exchange
a certificate of good standing from the
company’s jurisdiction of
incorporation.6
The Exchange notes that the
Commission approved a rule filing by
the American Stock Exchange (the
‘‘Amex’’) in 2000 to eliminate opinion
requirements from the Amex Company
Guide under the same conditions the
Exchange is proposing in this filing.7
Additionally, to the Exchange’s
knowledge, Nasdaq does not require
legal opinions in connection with new
listings. As such, the Exchange believes
that it is appropriate to conform its
listing procedure in this regard with
those of its direct competitors. In doing
so, the Exchange will avoid the
possibility of any competitive harm
arising out of the imposition of this
additional burden on issuers.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
the objectives of Section 6 8 of the Act
in general and furthers the objectives of
Section 6(b)(5) 9 in particular, in that it
is designed to promote just and
equitable principles of trade, to remove
impediments, and to perfect the
mechanism of, a free and open market
and a national market system, and, in
general, to protect investors and the
public interest. The proposed
amendment specifically seeks to remove
impediments to and perfect the
mechanisms of a free and open market
by conforming the Exchange’s listing
procedures to those of Nasdaq and the
Amex, thereby eliminating any
competitive disadvantage the Exchange
may suffer as a result of imposing a legal
opinion requirement with respect to
securities listings. In addition, the
Exchange’s procedures will continue to
protect the interests of investors by
imposing requirements that will ensure
6 The
Exchange will also put companies on notice
of this requirement by including a reference to it
in the checklist of required documentation sent out
to listing applicants and included on the
Exchange’s Web site. See the revised list of required
documentation included in Exhibit 3.
7 See Securities Exchange Act Release No. 42539
(March 17, 2000), 65 FR 15672 (March 23, 2000)
(SR–Amex–99–39).
8 15 U.S.C. 78f.
9 15 U.S.C. 78f(b)(5).
PO 00000
Frm 00081
Fmt 4703
Sfmt 4703
that listed companies are duly and
validly organized and in good standing
in their jurisdiction of incorporation.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants or Others
Written comments on the proposed
rule change were neither solicited nor
received.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
The proposed rule change has taken
effect upon filing pursuant to Section
19(b)(3)(A) of the Act.10
The Exchange asserts that the
proposed rule change (i) will not
significantly affect the protection of
investors or the public interest, (ii) will
not impose any significant burden on
competition, and (iii) will not become
operative for 30 days after the date of
this filing, or such shorter time as the
Commission may designate if consistent
with the protection of investors and the
public interest.
The Exchange provided the
Commission with 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 the
filing of the proposed rule change as
required by Rule 19b–4(f)(6).11
At any time within 60 days of the
filing of the proposed rule change, the
Commission may summarily abrogate
such rule change if it appears to the
Commission that such action is
necessary or appropriate in the public
interest, for the protection of investors,
or otherwise in furtherance of the
purposes of the Act.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
10 15
11 17
E:\FR\FM\02OCN1.SGM
U.S.C. 78s(b)(3)(A).
C.F.R. 240.19b–4(f)(6).
02OCN1
Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Notices
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–NYSE–2008–82 on the
subject line.
Paper Comments
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–58647; File No. SR–
NYSEArca–2008–99]
Self-Regulatory Organizations; NYSE
Arca, Inc.; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change Relating to the ProShares
Trust II
• Send paper comments in triplicate
to Secretary, Securities and Exchange
Commission, 100 F Street, NE.,
Washington, DC 20549–1090.
September 25, 2008.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.12
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8–23193 Filed 10–1–08; 8:45 am]
Change
In its filing with the Commission, the
self-regulatory organization 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
mstockstill on PROD1PC66 with NOTICES
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Exchange Act’’) 1 and Rule 19b–4
thereunder,2 notice is hereby given that
on September 18, 2008, NYSE Arca, Inc.
All submissions should refer to File
(‘‘NYSE Arca’’ or ‘‘Exchange’’) filed
Number SR-NYSE–2008–82. This file
with the Securities and Exchange
number should be included on the
Commission (‘‘Commission’’) the
subject line if e-mail is used. To help the
proposed rule change described in Items
Commission process and review your
I and II below, which Items have been
comments more efficiently, please use
prepared by the Exchange. The
only one method. The Commission will Commission is publishing this notice to
post all comments on the Commission’s solicit comments on the proposed rule
Internet Web site (https://www.sec.gov/
change from interested persons.
rules/sro.shtml ). Copies of the
I. Self-Regulatory Organization’s
submission, all subsequent
Statement of the Terms of Substance of
amendments, all written statements
the Proposed Rule Change
with respect to the proposed rule
Pursuant to the provisions of Section
change that are filed with the
19(b)(1) of the Exchange Act,3 NYSE
Commission, and all written
Arca, through its wholly-owned
communications relating to the
subsidiary NYSE Arca Equities, Inc.
proposed rule change between the
Commission and any person, other than (‘‘NYSE Arca Equities’’), is submitting
this proposed rule change in connection
those that may be withheld from the
with the listing and trading on the
public in accordance with the
Exchange of shares (‘‘Shares’’) of
provisions of 5 U.S.C. 552, will be
fourteen (14) funds (‘‘Funds’’) of
available for inspection and copying in
ProShares Trust II (formerly known as
the Commission’s Public Reference
Commodities & Currency Trust)
Room, 100 F Street, NE., Washington,
(‘‘Trust’’) based on several currencies,
DC 20549, on official business days
commodities and commodities indexes,
between the hours of 10 a.m. and 3 p.m.
relating to the names of the Trust and
Copies of the filing also will be available the Funds, the Funds’ Web site
for inspection and copying at the
disclosure relating to the availability of
principal office of the self-regulatory
information regarding the Shares, and
organization. All comments received
the expected price of the Shares at
will be posted without change; the
commencement of trading. The text of
Commission does not edit personal
the proposed rule change is available on
identifying information from
the Exchange’s Web site at
submissions. You should submit only
www.nyse.com, at the Exchange’s
information that you wish to make
principal office and at the Commission’s
available publicly. All submissions
Public Reference Room.
should refer to File Number SR–NYSE–
II. Self-Regulatory Organization’s
2008–82 and should be submitted on or
Statement of the Purpose of, and
before October 23, 2008.
Statutory Basis for, the Proposed Rule
BILLING CODE 8011–01–P
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 15 U.S.C. 78s(b)(1).
2 17
12 17
CFR 200.30–3(a)(12).
VerDate Aug<31>2005
17:52 Oct 01, 2008
Jkt 217001
PO 00000
Frm 00082
Fmt 4703
Sfmt 4703
57399
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 parts of such
statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Commission has approved the
listing of the Shares on the Exchange
pursuant to Section 19(b)(2) 4 of the
Exchange Act. The Exchange intends to
list and trade the Shares pursuant to
NYSE Arca Equities Rule 8.200,
Commentary .02, which permits the
trading of Trust Issued Receipts
(‘‘TIRs’’) either by listing or pursuant to
unlisted trading privileges (‘‘UTP’’).5
The Commission previously approved
the Shares for listing on the American
Stock Exchange LLC (‘‘Amex’’) 6 and for
trading on the Exchange pursuant to
UTP.7 The Exchange is filing this
proposal to reflect changes to the names
of the Trust and the Funds, to clarify the
Funds’ Web site disclosure relating to
the availability of information regarding
the Shares, and to correct a
representation in the NYSE Arca Order
regarding the expected price of the
Shares at commencement of trading.
Additional information regarding the
Funds and the Trust is included in the
NYSE Arca Order and the Amex Order.
In the NYSE Arca Order, the
Commission approved listing on the
Exchange of the following Funds of the
Trust (formerly known as Commodities
& Currency Trust): (1) Ultra DJ–AIG
Commodity ProShares, (2) UltraShort
DJ–AIG Commodity ProShares, (3) Ultra
DJ–AIG Agriculture ProShares, (4)
UltraShort DJ–AIG Agriculture
ProShares, (5) Ultra DJ–AIG Crude Oil
ProShares, (6) UltraShort DJAIG Crude
Oil ProShares, (7) Ultra Gold ProShares,
(8) UltraShort Gold ProShares, (9) Ultra
Silver ProShares, (10) UltraShort Silver
ProShares, (11) Ultra Euro ProShares,
(12) UltraShort Euro ProShares, (13)
Ultra Yen ProShares and (14) UltraShort
Yen ProShares. The Trust has advised
4 15
U.S.C. 78(s)(b)(2).
Securities Exchange Act Release No. 58457
(September 3, 2008), 73 FR 52711 (September 10,
2008) (SR–NYSEArca–2008–91) (‘‘NYSE Arca
Order’’).
6 See Securities Exchange Act Release No. 58161
(July 15, 2008), 73 42380 (July 21, 2008) (SR–
Amex–2008–39). Notice of the Amex proposed rule
change was published in Securities Exchange Act
Release No. 57932 (June 5, 2008), 73 FR 33467 (June
12, 2008) (‘‘Amex Order’’)
7 See Securities Exchange Act Release No. 58162
(July 15, 2008), 73 FR 42391 (July 21, 2008) (SR–
NYSEArca–2008–73).
5 See
E:\FR\FM\02OCN1.SGM
02OCN1
]]>Agencies
[Federal Register Volume 73, Number 192 (Thursday, October 2, 2008)]
[Notices]
[Pages 57397-57399]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23193]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-58649; File No. SR-NYSE-2008-82]
Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of a Proposed Rule Change,
as Modified by Amendment No. 1, To Modify Its Policy With Respect to
Legal Opinions in Connection With Listings of Securities
September 25, 2008.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on September 9, 2008, New York Stock Exchange LLC (``NYSE'' or
``the Exchange'') filed with the Securities and Exchange Commission
(the ``Commission'') the proposed rule change as described in Items I,
II, and III below, which Items have been prepared by the Exchange. On
September 21, 2008, the Exchange filed Amendment No. 1 to the proposed
rule change.\3\ The Commission is publishing this notice, as amended,
to solicit comments on the proposal from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ In Amendment No. 1, the Exchange made technical, non-
substantive corrections to Exhibits 3 and 5.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of 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 III below. The Exchange has prepared summaries, set forth in
Sections A, B, and C below, of the most significant aspects of such
statements.
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 III 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 Exchange proposes to amend the Manual by removing the
provisions throughout Chapter Seven that require issuers to supply
opinions of counsel to the Exchange in connection with any initial
listing application or supplemental listing application.\4\
---------------------------------------------------------------------------
\4\ This filing deletes references to the opinion of counsel
requirements from the ``Reference Guide For Subsequent Listing
Applications'' section at the front of the Manual and replaces them
with a requirement (i) furnish the Exchange with copies of opinions
of counsel filed in connection with recent public offerings or (ii)
if no opinions of counsel exist, provide to the Exchange a
certificate of good standing from the company's jurisdiction of
incorporation. In addition, the filing makes the same modification
to the following sections of the Manual: 702.04 (Supporting
Documents); 703.01 (part 2) (General Information); 703.02 (part 3)
(Stock Split/Stock Rights/Stock Dividend Listing Process); 703.03
(Short Term Rights Offerings Relating to Listed Securities Listing
Process); 703.04 (Public Offerings and Private Placement of Common
Stock Listing Process); 703.05 (Preferred Stock Offerings Listing
Process); 703.06 (Debt Securities Offerings Listing Process); 703.07
(Reserves for Convertible Securities Listing Process); 703.08
(Mergers, Acquisitions and Other Business Combinations Listing
Process); 703.09 (Stock Option, Stock Purchase and Other
Remuneration Plans Listing Process); 703.10 (Technical Original
Listing Process); 703.11 (Supplemental Listing Process); 703.12
(Warrants Listing Standards); 703.13 (``Special Stocks'' Listing
Process (Stocks Which Have Periodic Increases in Conversion Rate
Into Common Stock)); 703.14 (Voting Trust Certificate Listing
Process); and 903.01 (Format of Original Listing Application).
---------------------------------------------------------------------------
[[Page 57398]]
Exchange rules have long required the delivery of an opinion of
counsel addressed to the Exchange in connection with each application
to list securities, including applications to list additional shares of
a previously listed class.\5\ The Exchange believes that its opinion
requirement is duplicative of several safeguards that now exist to
protect investors in listed securities. In particular, an issuer's
independent auditor reviews the issuance of securities as part of its
annual audit. Additionally, the underwriters of securities sold in a
public offering receive legal opinions as to the validity of the
issuance of the securities they purchase, as well as performing their
own due diligence on the company and the securities. Furthermore, a
legal opinion as to the legality of the issuance of the securities
being registered is delivered to the SEC in connection with the filing
of any registration statement. Accordingly, the Exchange proposes to
end its policy of requiring legal opinions in connection with listing
applications, including applications to list additional shares of a
previously listed class. In lieu of the existing opinion requirements,
the Exchange will require issuers to (i) furnish the Exchange with
copies of opinions of counsel filed in connection with recent public
offerings or (ii) if no opinions of counsel exist, provide to the
Exchange a certificate of good standing from the company's jurisdiction
of incorporation.\6\
---------------------------------------------------------------------------
\5\ In connection with the listing of equity securities,
including rights, warrants, preferred stock, options, etc., the
required opinion (as set forth in Section 702.04) relates to: (i)
The legality of organization of the company; (ii) the authorization
of the issuance of the securities for which listing application is
made; (iii) the validity of such securities; (iv) whether shares
are, or will be when issued, fully-paid and non-assessable; (v)
whether shareholders are personally liable under the laws of the
jurisdiction in which the company is organized and the jurisdiction
in which its principal place of business is located; (vi) the date
and nature of any order or proceeding of any Federal or State
regulatory authority prerequisite to issuance of any unissued
securities covered by the application and, if such steps have not
been completed, the present status thereof; (vii) whether the shares
require registration under the Federal securities laws and, if so, a
statement that the shares are so registered; and (viii) if counsel,
any partner of such counsel, or any member of a firm rendering the
opinion is a director or officer of the company, that fact is
required to be disclosed in the opinion.
In the case of debt securities, Section 703.06(G) requires an
opinion of counsel addressing: (i) The legality of organization of
the company; (ii) the authorization by the Board of Directors, in
accordance with Exchange policy, of the issuance and listing of the
securities for which the listing application is made; (iii) the
validity of such securities; qualification of the indenture under
the Trust Indenture Act of 1939; and (iv) effectiveness of
registration of the securities under the Securities Act of 1933, or,
if not registered, the reasons why not.
\6\ The Exchange will also put companies on notice of this
requirement by including a reference to it in the checklist of
required documentation sent out to listing applicants and included
on the Exchange's Web site. See the revised list of required
documentation included in Exhibit 3.
---------------------------------------------------------------------------
The Exchange notes that the Commission approved a rule filing by
the American Stock Exchange (the ``Amex'') in 2000 to eliminate opinion
requirements from the Amex Company Guide under the same conditions the
Exchange is proposing in this filing.\7\ Additionally, to the
Exchange's knowledge, Nasdaq does not require legal opinions in
connection with new listings. As such, the Exchange believes that it is
appropriate to conform its listing procedure in this regard with those
of its direct competitors. In doing so, the Exchange will avoid the
possibility of any competitive harm arising out of the imposition of
this additional burden on issuers.
---------------------------------------------------------------------------
\7\ See Securities Exchange Act Release No. 42539 (March 17,
2000), 65 FR 15672 (March 23, 2000) (SR-Amex-99-39).
---------------------------------------------------------------------------
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with the objectives of Section 6 \8\ of the Act in general and furthers
the objectives of Section 6(b)(5) \9\ in particular, in that it is
designed to promote just and equitable principles of trade, to remove
impediments, and to perfect the mechanism of, a free and open market
and a national market system, and, in general, to protect investors and
the public interest. The proposed amendment specifically seeks to
remove impediments to and perfect the mechanisms of a free and open
market by conforming the Exchange's listing procedures to those of
Nasdaq and the Amex, thereby eliminating any competitive disadvantage
the Exchange may suffer as a result of imposing a legal opinion
requirement with respect to securities listings. In addition, the
Exchange's procedures will continue to protect the interests of
investors by imposing requirements that will ensure that listed
companies are duly and validly organized and in good standing in their
jurisdiction of incorporation.
---------------------------------------------------------------------------
\8\ 15 U.S.C. 78f.
\9\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
Written comments on the proposed rule change were neither solicited
nor received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The proposed rule change has taken effect upon filing pursuant to
Section 19(b)(3)(A) of the Act.\10\
---------------------------------------------------------------------------
\10\ 15 U.S.C. 78s(b)(3)(A).
---------------------------------------------------------------------------
The Exchange asserts that the proposed rule change (i) will not
significantly affect the protection of investors or the public
interest, (ii) will not impose any significant burden on competition,
and (iii) will not become operative for 30 days after the date of this
filing, or such shorter time as the Commission may designate if
consistent with the protection of investors and the public interest.
The Exchange provided the Commission with 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 the filing of the proposed rule change as required by
Rule 19b-4(f)(6).\11\
---------------------------------------------------------------------------
\11\ 17 C.F.R. 240.19b-4(f)(6).
---------------------------------------------------------------------------
At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
[[Page 57399]]
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 Number SR-NYSE-2008-82 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2008-82. 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, 100 F Street, NE., Washington, DC
20549, on official business days between the hours of 10 a.m. and 3
p.m. Copies of the filing also will be available for inspection and
copying at the principal office of the self-regulatory organization.
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-2008-82
and should be submitted on or before October 23, 2008.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\12\
---------------------------------------------------------------------------
\12\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-23193 Filed 10-1-08; 8:45 am]
BILLING CODE 8011-01-P
