Self-Regulatory Organizations; Notice of Filing of Proposed Rule Change by New York Stock Exchange LLC To Adopt an Initial Listing Standard Applicable Only to Companies Transferring From NYSE Arca, 60378-60380 [E8-24178]
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60378
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Notices
all tapes through the Order Delivery
Mode, through Auto Ex, and as liquidity
providing trades and quotes. Based
upon the information above, the
Exchange believes that the proposed
rule change is consistent with the
protection of investors and the public
interest.
Operative Date and Notice
The Exchange intends to make the
proposed credit and rebate structure
effective on filing of this proposed rule
for trading on September 23, 2008.
Pursuant to Exchange Rule 16.1(c), the
Exchange will ‘‘provide ETP Holders
with notice of all relevant dues, fees,
assessments and charges of the
Exchange’’ through the issuance of a
Regulatory Circular of the changes to the
Fee Schedule and will provide a copy
of the rule filing on the Exchange’s Web
site (https://www.nsx.com).
Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
the provisions of Section 6(b) of the
Act,5 in general, and Section 6(b)(4) of
the Act,6 in particular, in that it is
designed to provide for the equitable
allocation of reasonable dues, fees and
other charges among its members and
other persons using the facilities of the
Exchange. Moreover, the proposed fee
and rebate structure is not
discriminatory in that all ETP Holders
are eligible to submit (or not submit)
liquidity adding trades and quotes in
Order Delivery Mode in all tapes and
may do so at their discretion.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any inappropriate burden on
competition.
mstockstill on PROD1PC66 with NOTICES
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.
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)(ii) of the Act 7 and
subparagraph (f)(2) of Rule 19b–4 8
thereunder, because, as provided in
5 15
U.S.C. 78f(b).
U.S.C. 78f(b)(4).
7 15 U.S.C. 78s(b)(3)(A)(ii).
8 17 CFR 240.19b–4 [sic].
6 15
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(f)(2), it ‘‘changes a due, fee or other
charge imposed by the Exchange
applicable only to a member’’ (known
on the Exchange as an ETP Holder). At
any time within sixty (60) days of the
filing of such 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:
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–NSX–2008–17 on the
subject line.
information from submissions. You
should submit only information that
you wish to make available publicly. All
submissions should refer to File
Number SR–NSX–2008–17 and should
be submitted on or before October 31,
2008.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.9
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8–24118 Filed 10–9–08; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–58741; File No. SR–NYSE–
2008–97]
Self-Regulatory Organizations; Notice
of Filing of Proposed Rule Change by
New York Stock Exchange LLC To
Adopt an Initial Listing Standard
Applicable Only to Companies
Transferring From NYSE Arca
October 6, 2008.
Pursuant to Section 19(b)(1) 1 of the
Securities Exchange Act of 1934 (the
Paper Comments
‘‘Act’’),2 and Rule 19b–4 thereunder,3
notice is hereby given that on October
• Send paper comments in triplicate
1, 2008, New York Stock Exchange LLC
to Secretary, Securities and Exchange
(the ‘‘NYSE’’ or the ‘‘Exchange’’) filed
Commission, 100 F Street, NE.,
with the Securities and Exchange
Washington, DC 20549–1090.
Commission the proposed rule changes
All submissions should refer to File
as described in Items I, II and III below,
Number SR–NSX–2008–17. This file
which items have been prepared by the
number should be included on the
subject line if e-mail is used. To help the Exchange. The Commission is
publishing this notice to solicit
Commission process and review your
comments on the proposed rule changes
comments more efficiently, please use
only one method. The Commission will from interested persons.
post all comments on the Commission’s I. Self-Regulatory Organization’s
Internet Web site (https://www.sec.gov/
Statement of the Terms of Substance of
rules/sro.shtml). Copies of the
the Proposed Rule Change
submission, all subsequent
The Exchange proposes to amend
amendments, all written statements
Section 102.01C of the Exchange’s
with respect to the proposed rule
Listed Company Manual (the ‘‘Manual’’)
change that are filed with the
to adopt an initial listing standard that
Commission, and all written
will be applicable only to companies
communications relating to the
that are listed on NYSE Arca, Inc.
proposed rule change between the
Commission and any person, other than (‘‘NYSE Arca’’) as of October 1, 2008
and that transfer to the Exchange on or
those that may be withheld from the
before March 31, 2009. The Exchange
public in accordance with the
also proposes to apply the continued
provisions of 5 U.S.C. 552, will be
listing standard applicable under
available for inspection and copying in
Section 802.01B to companies listed
the Commission’s Public Reference
under the Earnings Test to companies
Room, 100 F Street, NE., Washington,
listed under the proposed new initial
DC 20549, on official business days
4
between the hours of 10 a.m. and 3 p.m. listing standard.
Copies of such filing also will be
9 17 CFR 200.30–3(a)(12).
available for inspection and copying at
1 15 U.S.C. 78s(b)(1).
the principal office of the Exchange. All
2 15 U.S.C. 78a.
comments received will be posted
3 17 CFR 240.19b–4.
without change; the Commission does
4 The Commission notes that NYSE is also
proposing to adopt a new initial listing standard for
not edit personal identifying
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Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Notices
The text of the proposed rule change
is available at https://www.nyse.com, the
NYSE, and 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
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
of these statements may be examined at
the places specified in Item IV below.
The NYSE has prepared summaries, set
forth in Sections A, B, and C below, of
the most significant aspects of such
statements.
mstockstill on PROD1PC66 with NOTICES
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
Section 102.01C of the Manual to adopt
an initial listing standard that will be
applicable only to companies that are
listed on NYSE Arca, Inc. (‘‘NYSE
Arca’’) as of October 1, 2008 and that
transfer to the Exchange on or before
March 31, 2009. The Exchange also
proposes to apply the continued listing
standard applicable under Section
802.01B to companies listed under the
Earnings Test 5 to companies listed
under the proposed new initial listing
standard.
Upon completion of its acquisition of
the American Stock Exchange (to be
renamed NYSE Alternext US LLC at the
time of the acquisition), NYSE Euronext
will have three equity listing markets:
The NYSE; NYSE Arca; and NYSE
Alternext US. NYSE Euronext
management has made a strategic
business decision to move forward with
only two operating company equity
listing markets and, consequently, has
decided to discontinue the operating
company equity listing program on
NYSE Arca. As part of this transition,
the Exchange wishes to offer the
opportunity to list on the NYSE to all
suitable NYSE Arca companies. NYSE
Arca listed companies wishing to
transfer to the NYSE will be required to
submit a listing application and be
subject to the same listing application
process as all other applicant
companies. Most companies currently
operating companies. See Securities Exchange Act
Release No. 58740 (October 6, 2008) (SR–NYSE–
2008–98).
5 As set forth in Section 802.01B(1) of the Manual.
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20:11 Oct 09, 2008
Jkt 217001
listed on NYSE Arca would meet the
NYSE’s continued listing requirements
set forth in Section 802.01B of the
Manual for companies listed under the
Exchange’s Earnings Test.6 However, a
number of these companies that meet
the NYSE’s continued listing standards
do not qualify to list under any of the
existing NYSE initial listing standards.
In order to list these companies, the
Exchange proposes to adopt a special
listing standard applicable only to those
companies listed on NYSE Arca on the
date of initial submission of this filing
and the Exchange would only utilize
this standard for a brief period, ending
on March 31, 2009.
Companies transferring from NYSE
Arca under the proposed standard (the
‘‘NYSE Arca Transfer Standard’’) would
be required to have $75 million in total
market capitalization for 90 consecutive
days prior to applying for listing and
$20 million in market value of publiclyheld shares (but not the $100 million
market value of publicly-held shares
requirement of Section 102.01B). Such
companies would have to meet the
holders, publicly-held shares and
trading volume requirements as set forth
in Section 102.01A as companies that
list under the existing initial listing
standards and the $4 stock price
requirement of Section 102.01B.7
The Exchange believes it is
appropriate to adopt a short-term listing
standard applicable only to NYSE Arca
companies. These companies listed on
NYSE Arca on the assumption that it
would exist as a permanent listing
market and it is solely because of a
business decision made by NYSE
Euronext that these companies will
need to transfer their listings. Many of
these companies listed on NYSE Arca
because of its association with the NYSE
and in the expectation that they would
6 Companies listed under the Earnings Test are
considered to be below compliance standards if
their average global market capitalization over a
consecutive 30 trading-day period is less than
$75,000,000 and, at the same time, total
stockholders’ equity is less than $75,000,000. In
addition Section 802.01B requires all listed
companies to maintain a minimum of $25 million
in global market capitalization and Section 802.01C
requires all listed companies to maintain a $1.00
minimum stock price. The Exchange represents that
the holders, trading volume and publicly-held
shares requirements of Section 802.01A along with
the requirements of Sections 802.01D (‘‘Other
Criteria’’) and 802.01E (‘‘SEC Annual Report Timely
Filing Criteria’’) would also apply. Telephone
conversation between John Carey, Chief Counsel,
NYSE and David J. Michehl, Special Counsel,
Division of Trading and Markets, Commission on
October 6, 2008.
7 The total market capitalization and market value
of publicly-held shares requirements of the NYSE
Arca Transfer Standard equal those of Amex Initial
Listing Standard 4 (Amex Company Guide Section
101(d)).
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60379
ultimately switch their listing to the
NYSE when they met the NYSE’s listing
standards. As such, the Exchange
believes that fairness dictates that it
should seek to list these companies on
the NYSE where such a listing is
appropriate and in the interests of the
investing public.
The NYSE will only list companies
under the NYSE Arca Transfer Standard
if it believes that those companies are
suitable for trading on the NYSE. All of
the companies that would be listed
under the NYSE Arca Transfer Standard
will far exceed the NYSE’s continued
listing standards at the time of initial
listing and will be in compliance with
NYSE Arca continued listing standards.
In addition, the same staff in NYSE
Regulation’s Financial Compliance and
Corporate Governance groups is
responsible for ongoing compliance
reviews of both NYSE and NYSE Arca
companies. As such, the NYSE
Regulation staff involved in making
initial listing determinations on the
NYSE is extremely familiar with the
companies currently listed on NYSE
Arca and is uniquely positioned to
determine whether those companies are
suitable for listing on the NYSE. The
Exchange believes its depth of
knowledge with respect to NYSE Arca
companies makes it appropriate to list
them on this one time basis under a less
onerous standard than the Exchange
applies to other listing applicants.
Companies listing under the NYSE Arca
Transfer Standard will be subject to the
standard listing application and review
process applicable to all listing
applicants and, if Exchange staff
determine that an NYSE Arca company
is not suitable for listing on the NYSE—
notwithstanding its qualification under
the numerical requirements of the NYSE
Arca Transfer Standard—the Exchange
will not list that company.
The requirements of the NYSE Arca
Transfer Standard will exceed those
established by the Exchange Act Rule
3a51–1(a)(2) (the ‘‘Penny Stock Rule’’).8
The proposed standard’s requirement
that an applicant have $75 million in
global market capitalization for 90 days
prior to transferring from NYSE Arca
exceeds the $50 million market
capitalization for 90 days prior to listing
option in the Penny Stock Rule, as well
as the $50 million market capitalization
requirement of Rule 3a51–1(a)(2)(i)(B).
In addition, companies listing under the
NYSE Arca Transfer Standard will be
required at the time of transfer to have
a $4 stock price, 400 round lot holders
and 1.1 million publicly held shares,
thereby meeting or exceeding all of the
8 17
E:\FR\FM\10OCN1.SGM
CFR 240.a51–1(a)(ii).
10OCN1
60380
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Notices
Penny Stock Rule’s remaining
requirements.
Companies listing under the NYSE
Arca Transfer Standard will have to
comply with all other applicable
Exchange listing rules, including the
Exchange’s corporate governance
requirements. As with all other listing
applicants, the Exchange reserves the
right to deny listing to any company
seeking to list under the NYSE Arca
Transfer Standard if the Exchange
determines that the listing of any such
company is not in the interests of the
Exchange or the public interest.
2. Statutory Basis
The basis under the Act for this
proposed rule change is the requirement
under Section 6(b)(5) 9 that an exchange
have rules that are 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, in general, to protect investors and
the public interest. The Exchange
believes that the proposed amendment
is consistent with the protection of
investors and the public interest in that
the requirements of the NYSE Arca
Transfer Standard are sufficiently
stringent that the proposed amendment
will not lead to the listing of any
companies that are not suited for listing
on the NYSE. In addition, the proposal
applies for a very brief period to a small
number of companies that are subject to
unique and disadvantageous
circumstances.
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 purpose of the Act.
mstockstill on PROD1PC66 with NOTICES
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants or Others
Written comments were neither
solicited nor received.
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
9 15
U.S.C. 78f(b)(5).
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20:11 Oct 09, 2008
Jkt 217001
(ii) as to which the self-regulatory
organization consents, the Commission
will:
(A) By order approve the 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 Exchange
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–NYSE–2008–97 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–2008–97. 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 Exchange. All
comments received will be posted
without change; the Commission does
not edit personal identifying
information from submissions. You
should submit only information that
you wish to make available publicly. All
submissions should refer to File
Number SR–NYSE–2008–97 and should
PO 00000
Frm 00153
Fmt 4703
Sfmt 4703
be submitted on or before October 31,
2008.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.10
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8–24178 Filed 10–9–08; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–58736; File No. SR–NYSE–
2008–91]
Self-Regulatory Organizations; Notice
of Filing of Proposed Rule Change by
New York Stock Exchange LLC To
Adopt a Policy Relating to its
Treatment of Trade Reports That It
Determines To Be Inconsistent With
the Prevailing Market
October 6, 2008.
Pursuant to Section 19(b)(1) 1 of the
Securities Exchange Act of 1934 (the
‘‘Exchange Act’’),2 and Rule 19b–4
thereunder,3 notice is hereby given that
on September 26, 2008, New York Stock
Exchange, LLC (the ‘‘NYSE’’ or the
‘‘Exchange’’) filed with the Securities
and Exchange Commission the proposed
rule change as described in Items I, II
and III below, which items have been
prepared by the Exchange. The
Commission is publishing this notice to
solicit comments on the proposed rule
change from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to adopt a
policy relating to its treatment of trade
reports that it determines to be
inconsistent with the prevailing market.
The Exchange does not expect that the
proposed rule change will have any
direct effect, or significant indirect
effect, on any other Exchange rule in
effect at the time of this filing.
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
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
of these statements may be examined at
10 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 15 U.S.C. 78a et SEC [sic].
3 17 CFR 240.19b–4.
1 15
E:\FR\FM\10OCN1.SGM
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Agencies
[Federal Register Volume 73, Number 198 (Friday, October 10, 2008)]
[Notices]
[Pages 60378-60380]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-24178]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-58741; File No. SR-NYSE-2008-97]
Self-Regulatory Organizations; Notice of Filing of Proposed Rule
Change by New York Stock Exchange LLC To Adopt an Initial Listing
Standard Applicable Only to Companies Transferring From NYSE Arca
October 6, 2008.
Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that on October 1, 2008, New York Stock Exchange LLC (the
``NYSE'' or the ``Exchange'') filed with the Securities and Exchange
Commission the proposed rule changes as described in Items I, II and
III below, which items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule changes from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to amend Section 102.01C of the Exchange's
Listed Company Manual (the ``Manual'') to adopt an initial listing
standard that will be applicable only to companies that are listed on
NYSE Arca, Inc. (``NYSE Arca'') as of October 1, 2008 and that transfer
to the Exchange on or before March 31, 2009. The Exchange also proposes
to apply the continued listing standard applicable under Section
802.01B to companies listed under the Earnings Test to companies listed
under the proposed new initial listing standard.\4\
---------------------------------------------------------------------------
\4\ The Commission notes that NYSE is also proposing to adopt a
new initial listing standard for operating companies. See Securities
Exchange Act Release No. 58740 (October 6, 2008) (SR-NYSE-2008-98).
---------------------------------------------------------------------------
[[Page 60379]]
The text of the proposed rule change is available at https://
www.nyse.com, the NYSE, and 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 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 of these statements may be examined at
the places specified in Item IV below. The NYSE 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 Section 102.01C of the Manual to
adopt an initial listing standard that will be applicable only to
companies that are listed on NYSE Arca, Inc. (``NYSE Arca'') as of
October 1, 2008 and that transfer to the Exchange on or before March
31, 2009. The Exchange also proposes to apply the continued listing
standard applicable under Section 802.01B to companies listed under the
Earnings Test \5\ to companies listed under the proposed new initial
listing standard.
---------------------------------------------------------------------------
\5\ As set forth in Section 802.01B(1) of the Manual.
---------------------------------------------------------------------------
Upon completion of its acquisition of the American Stock Exchange
(to be renamed NYSE Alternext US LLC at the time of the acquisition),
NYSE Euronext will have three equity listing markets: The NYSE; NYSE
Arca; and NYSE Alternext US. NYSE Euronext management has made a
strategic business decision to move forward with only two operating
company equity listing markets and, consequently, has decided to
discontinue the operating company equity listing program on NYSE Arca.
As part of this transition, the Exchange wishes to offer the
opportunity to list on the NYSE to all suitable NYSE Arca companies.
NYSE Arca listed companies wishing to transfer to the NYSE will be
required to submit a listing application and be subject to the same
listing application process as all other applicant companies. Most
companies currently listed on NYSE Arca would meet the NYSE's continued
listing requirements set forth in Section 802.01B of the Manual for
companies listed under the Exchange's Earnings Test.\6\ However, a
number of these companies that meet the NYSE's continued listing
standards do not qualify to list under any of the existing NYSE initial
listing standards. In order to list these companies, the Exchange
proposes to adopt a special listing standard applicable only to those
companies listed on NYSE Arca on the date of initial submission of this
filing and the Exchange would only utilize this standard for a brief
period, ending on March 31, 2009.
---------------------------------------------------------------------------
\6\ Companies listed under the Earnings Test are considered to
be below compliance standards if their average global market
capitalization over a consecutive 30 trading-day period is less than
$75,000,000 and, at the same time, total stockholders' equity is
less than $75,000,000. In addition Section 802.01B requires all
listed companies to maintain a minimum of $25 million in global
market capitalization and Section 802.01C requires all listed
companies to maintain a $1.00 minimum stock price. The Exchange
represents that the holders, trading volume and publicly-held shares
requirements of Section 802.01A along with the requirements of
Sections 802.01D (``Other Criteria'') and 802.01E (``SEC Annual
Report Timely Filing Criteria'') would also apply. Telephone
conversation between John Carey, Chief Counsel, NYSE and David J.
Michehl, Special Counsel, Division of Trading and Markets,
Commission on October 6, 2008.
---------------------------------------------------------------------------
Companies transferring from NYSE Arca under the proposed standard
(the ``NYSE Arca Transfer Standard'') would be required to have $75
million in total market capitalization for 90 consecutive days prior to
applying for listing and $20 million in market value of publicly-held
shares (but not the $100 million market value of publicly-held shares
requirement of Section 102.01B). Such companies would have to meet the
holders, publicly-held shares and trading volume requirements as set
forth in Section 102.01A as companies that list under the existing
initial listing standards and the $4 stock price requirement of Section
102.01B.\7\
---------------------------------------------------------------------------
\7\ The total market capitalization and market value of
publicly-held shares requirements of the NYSE Arca Transfer Standard
equal those of Amex Initial Listing Standard 4 (Amex Company Guide
Section 101(d)).
---------------------------------------------------------------------------
The Exchange believes it is appropriate to adopt a short-term
listing standard applicable only to NYSE Arca companies. These
companies listed on NYSE Arca on the assumption that it would exist as
a permanent listing market and it is solely because of a business
decision made by NYSE Euronext that these companies will need to
transfer their listings. Many of these companies listed on NYSE Arca
because of its association with the NYSE and in the expectation that
they would ultimately switch their listing to the NYSE when they met
the NYSE's listing standards. As such, the Exchange believes that
fairness dictates that it should seek to list these companies on the
NYSE where such a listing is appropriate and in the interests of the
investing public.
The NYSE will only list companies under the NYSE Arca Transfer
Standard if it believes that those companies are suitable for trading
on the NYSE. All of the companies that would be listed under the NYSE
Arca Transfer Standard will far exceed the NYSE's continued listing
standards at the time of initial listing and will be in compliance with
NYSE Arca continued listing standards. In addition, the same staff in
NYSE Regulation's Financial Compliance and Corporate Governance groups
is responsible for ongoing compliance reviews of both NYSE and NYSE
Arca companies. As such, the NYSE Regulation staff involved in making
initial listing determinations on the NYSE is extremely familiar with
the companies currently listed on NYSE Arca and is uniquely positioned
to determine whether those companies are suitable for listing on the
NYSE. The Exchange believes its depth of knowledge with respect to NYSE
Arca companies makes it appropriate to list them on this one time basis
under a less onerous standard than the Exchange applies to other
listing applicants. Companies listing under the NYSE Arca Transfer
Standard will be subject to the standard listing application and review
process applicable to all listing applicants and, if Exchange staff
determine that an NYSE Arca company is not suitable for listing on the
NYSE--notwithstanding its qualification under the numerical
requirements of the NYSE Arca Transfer Standard--the Exchange will not
list that company.
The requirements of the NYSE Arca Transfer Standard will exceed
those established by the Exchange Act Rule 3a51-1(a)(2) (the ``Penny
Stock Rule'').\8\ The proposed standard's requirement that an applicant
have $75 million in global market capitalization for 90 days prior to
transferring from NYSE Arca exceeds the $50 million market
capitalization for 90 days prior to listing option in the Penny Stock
Rule, as well as the $50 million market capitalization requirement of
Rule 3a51-1(a)(2)(i)(B). In addition, companies listing under the NYSE
Arca Transfer Standard will be required at the time of transfer to have
a $4 stock price, 400 round lot holders and 1.1 million publicly held
shares, thereby meeting or exceeding all of the
[[Page 60380]]
Penny Stock Rule's remaining requirements.
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\8\ 17 CFR 240.a51-1(a)(ii).
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Companies listing under the NYSE Arca Transfer Standard will have
to comply with all other applicable Exchange listing rules, including
the Exchange's corporate governance requirements. As with all other
listing applicants, the Exchange reserves the right to deny listing to
any company seeking to list under the NYSE Arca Transfer Standard if
the Exchange determines that the listing of any such company is not in
the interests of the Exchange or the public interest.
2. Statutory Basis
The basis under the Act for this proposed rule change is the
requirement under Section 6(b)(5) \9\ that an exchange have rules that
are 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, in general, to protect investors and the public interest. The
Exchange believes that the proposed amendment is consistent with the
protection of investors and the public interest in that the
requirements of the NYSE Arca Transfer Standard are sufficiently
stringent that the proposed amendment will not lead to the listing of
any companies that are not suited for listing on the NYSE. In addition,
the proposal applies for a very brief period to a small number of
companies that are subject to unique and disadvantageous circumstances.
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\9\ 15 U.S.C. 78f(b)(5).
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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 purpose of the Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
Written comments were neither solicited nor received.
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 self-regulatory organization consents, the Commission will:
(A) By order approve the 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 Exchange Act. Comments may be submitted
by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NYSE-2008-97 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-2008-97. 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 Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSE-2008-97 and should be
submitted on or before October 31, 2008.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
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\10\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-24178 Filed 10-9-08; 8:45 am]
BILLING CODE 8011-01-P