Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify the Sample Broker Letters Set Forth In Rule 451, 62849-62851 [E9-28614]
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Federal Register / Vol. 229, No. 74 / Tuesday, December 1, 2009 / Notices
equitable principles of trade, and, in
general, to protect investors and the
public interest.
More specifically, the Commission
believes requiring a member firm to
disclose the risks of day-trading to noninstitutional customers when the firm
promotes a day-trading strategy should
help alert individuals to the risks
associated with a day-trading strategy.
In addition, requiring a member firm to
determine whether a day-trading
strategy is appropriate for a customer
should help to assure that individuals
who are unable to bear the risks of daytrading, or who have investment
objectives incompatible with daytrading, are not approved for daytrading.
IV. Conclusion
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,14 that the
proposed rule change (SR–FINRA–
2009–059) be, and it hereby is,
approved.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.15
Elizabeth M. Murphy,
Secretary.
[FR Doc. E9–28613 Filed 11–30–09; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–61046; File No. SR–NYSE–
2009–114]
Self-Regulatory Organizations; New
York Stock Exchange LLC; Notice of
Filing and Immediate Effectiveness of
Proposed Rule Change To Modify the
Sample Broker Letters Set Forth In
Rule 451
mstockstill on DSKH9S0YB1PROD with NOTICES
November 20, 2009.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on November
16, 2009, New York Stock Exchange
LLC (the ‘‘Exchange’’ or ‘‘NYSE’’) 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.
The Exchange has designated the
proposed rule change as constituting a
non-controversial rule change under
Rule 19b–4(f)(6) under the Act,3 which
U.S.C. 78s(b)(2).
CFR 200.30–3(a)(12)
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
3 17 CFR 240.19b–4(f)(6).
15 17
20:14 Nov 30, 2009
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to amend
Exchange Rule 451 and Sections 905.01,
905.02 and 905.03 of the Exchange’s
Listed Company Manual (the ‘‘Manual’’)
to amend the forms of letters contained
in those rules to reflect the recent
amendments to the Exchange’s broker
voting rules.
The text of the proposed rule change
is available on the Exchange’s Web site
(https://www.nyse.com), at the
Exchange’s Office of the Secretary and
at the Commission’s Public Reference
room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
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 recently amended
Exchange Rule 452 and Section 402.08
of the Manual to provide that brokers
which are record holders of shares held
in client accounts will no longer be
permitted to vote those shares in the
election of directors without
instructions from the beneficial holder
of those shares.4 The amendments take
effect for shareholder meetings held on
or after January 1, 2010, except to the
extent that a meeting was originally
scheduled to be held prior to such
effective date but was properly
adjourned to a date on or after such
effective date.5
4 See Securities Exchange Act Release No. 60215
(July 1, 2009) 74 FR 33293 (July 10, 2009) (SR–
NYSE–2006–92).
5 The amendment does not affect brokers voting
as record holders of shares of companies registered
under the Investment Company Act of 1940.
14 15
VerDate Nov<24>2008
renders the proposal effective upon
filing with the Commission. The
Commission is publishing this notice to
solicit comments on the proposed rule
change from interested persons.
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62849
Supplementary Material .20 to
Exchange Rule 451 and Sections 905.01,
905.02 and 905.03 contain specimens of
letters containing the information and
instructions required pursuant to the
proxy rules to be given by NYSE
member organizations to clients where
the member organization is the record
holder of shares beneficially owned by
those clients in the circumstances where
a broker (i) may vote on all proposals
without voting instructions (Section
905.01), (ii) may not vote on any
proposals without instructions (Section
905.02), and (ii) may vote on certain but
not all proposals without instructions
(Section 905.03). These letters are
shown as examples and not as
prescribed forms. Member organizations
are permitted to adapt the form of these
letters for their own purposes provided
all of the required information and
instructions are clearly enumerated in
letters to clients.
The Exchange is concerned that many
shareholders receiving proxy materials
from their brokers for meetings
scheduled after January 1, 2010 will not
be aware of the amendments to the
NYSE’s broker voting rules and may
therefore assume that the broker as
record holder will vote their shares on
the election of directors if they do not
return voting instructions to their
broker. The NYSE believes it is
important for as many shares as possible
to be voted in the election of directors
and, therefore, believes it is important to
educate retail investors with respect to
the implications of their failure to return
voting instructions under the amended
rules. Consequently, the Exchange
proposes to amend the forms of letters
provided for use in connection with
meetings where the broker may vote on
none of the proposals before the meeting
and meetings where the broker may vote
on some but not all of the proposals
before the meeting. The proposed
amendments will insert the following
language in those forms for use in
connection with meetings scheduled
after January 1, 2010:
Please note that, under a rule amendment
adopted by the New York Stock Exchange for
shareholder meetings held on or after January
1, 2010, brokers are no longer allowed to vote
shares held in their clients’ accounts on
uncontested elections of directors unless the
client has provided voting instructions (it
will continue to be the case that brokers
cannot vote their clients’ shares in contested
director elections). Consequently, if you want
us to vote your shares on your behalf on the
election of directors, you must provide voting
instructions to us. Voting on matters
presented at shareholders meetings,
particularly the election of directors, is the
primary method for shareholders to influence
the direction taken by a publicly-traded
E:\FR\FM\01DEN1.SGM
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62850
Federal Register / Vol. 229, No. 74 / Tuesday, December 1, 2009 / Notices
company. We urge you to participate in the
election by returning the enclosed voting
instruction form to us with instructions as to
how to vote your shares in this election.
mstockstill on DSKH9S0YB1PROD with NOTICES
The Exchange also proposes to amend
Supplementary Material .20 to Rule 451
and Sections 905.01, 905.02 and 905.03
of the Manual to correct references in
the text which indicate that the broker
is sending a ‘‘proxy’’ to its clients. In
actuality, these letters are intended for
use in circumstances where the broker
as record holder is seeking voting
instructions from its clients as beneficial
holders. The broker then provides a
voting proxy to the company, voting
according to client instructions to the
extent applicable. As such, the broker
sends a voting instruction form to its
clients, rather than a proxy, and the
Exchange is amending the rule text to
accurately reflect this fact.
Currently, the letters for use when the
broker may not vote on any proposals
without instructions and may vote on
certain but not all proposals without
instructions state that if a client returns
a signed voting instruction form without
otherwise marking the form, the shares
will be voted as recommended by the
management on all matters to be
considered at the meeting. Rule 14a–
4(b)(1) under the Act provides that ‘‘a
proxy may confer discretionary
authority with respect to matters as to
which a choice is not specified by the
security holder provided that the form
of proxy states in bold-face type how it
is intended to vote the shares
represented by the proxy in each such
case.’’ In light of this requirement that
it be made very clear that the absence
of instructions gives the broker
discretion as to how the shares are
voted, the Exchange proposes to amend
the language of the applicable letters to
emphasize this fact by clarifying that it
is understood that, if the client signs
without otherwise marking the form,
this will be construed as instruction to
vote the shares as recommended by the
management on all matters to be
considered at the meeting.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
Section 6(b) 6 of the Act, in general, and
furthers the objectives of Section 6(b)(5)
of the Act,7 in particular in that it is
designed to promote just and equitable
principles of trade, to foster cooperation
and coordination with persons engaged
in regulating, clearing, settling,
processing information with respect to,
and facilitating transactions in
securities, to remove impediments to
and perfect the mechanism of a free and
open market and a national market
system, and, in general, to protect
investors and the public interest. The
Exchange believes that the proposed
amendments are consistent with the
investor protection objectives of the Act
in that their sole purpose is to explain
to shareholders the implications of
failing to provide voting instructions to
their brokers, thereby enabling them to
make a more informed decision with
respect to the exercise of their voting
rights.
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 were neither
solicited nor received.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Because the proposed rule change: (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, provided that the selfregulatory organization has given the
Commission written notice of its intent
to file 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 proposed rule change
has become effective pursuant to
Section 19(b)(3)(A) of the Act 8 and Rule
19b–4(f)(6) thereunder.9
At any time within 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.
8 15
U.S.C. 78s(b)(3)(A).
CFR 240.19b–4(f)(6). The Commission notes
that the Exchange has met this requirement.
6 15
U.S.C. 78f(b).
7 15 U.S.C. 78f(b)(5).
VerDate Nov<24>2008
20:14 Nov 30, 2009
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–NYSE–2009–114 on the
subject line.
Paper Comments
• Send paper comments in triplicate
to Elizabeth M. Murphy, Secretary,
Securities and Exchange Commission,
Station Place, 100 F Street, NE.,
Washington, DC 20549–1090.
All submissions should refer to File
Number SR–NYSE–2009–114. 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 such filing also will be
available for inspection and copying at
the principal office of the Exchange. All
comments received will be posted
without change; the Commission does
not edit personal identifying
information from submissions. You
should submit only information that
you wish to make publicly available. All
submissions should refer to File
Number SR–NYSE–2009–114 and
should be submitted on or before
December 22, 2009.
9 17
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CFR 200.30–3(a)(12).
01DEN1
Federal Register / Vol. 229, No. 74 / Tuesday, December 1, 2009 / Notices
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.10
Elizabeth M. Murphy,
Secretary.
[FR Doc. E9–28614 Filed 11–30–09; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–61049; File No. SR–
NYSEAmex–2009–82]
Self-Regulatory Organizations; Notice
of Filing of Proposed Rule Change by
NYSE Amex LLC Rescinding NYSE
Information Memoranda 04–27 and 07–
66 and Issuing a New Information
Memo Concerning the Exchange’s Gap
Quote Policy
November 23, 2009.
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
November 9, 2009, NYSE Amex LLC
(the ‘‘Exchange’’ or ‘‘NYSE Amex’’) 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.
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 rescind
NYSE Information Memoranda
(‘‘Information Memo’’) 04–27 and 07–66
and issue a new Information Memo that
provides updated parameters for, and
guidance on the application of, the
Exchange’s Gap Quote Policy (the
‘‘Policy’’). The text of the proposed rule
change is available at the Exchange, the
Commission’s Public Reference Room,
and https://www.nyse.com.
mstockstill on DSKH9S0YB1PROD with NOTICES
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 those statements may be examined at
1 15
U.S.C. 78s(b)(1).
U.S.C. 78a.
3 17 CFR 240.19b–4.
2 15
VerDate Nov<24>2008
20:14 Nov 30, 2009
Jkt 220001
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 purpose of the proposed rule
changes is to rescind NYSE Information
Memos 04–27 and 07–66 and issue a
new Information Memo that provides
updated parameters for, and guidance
on the application of, the Policy.4
The principal change to the Policy is
a reduction in the minimum size (from
at least 10,000 shares to at least 5,000)
and value (from $200,000 or more to
$100,000 or more) requirements for
publishing a gap quote. In addition, the
Exchange proposes to clarify certain
aspects of the Policy related to setting
the price of the gap quote. Finally, the
Exchange proposes adding language
clarifying or reminding members of
certain aspects of the Policy and other
technical or non-substantive changes.
In order to ensure an orderly
transition to usage of the new
parameters, the Exchange proposes that
these changes be made operative within
ten business days after the approval of
this filing.
Background
The purpose of the Policy, described
in greater detail below, is to provide
public notice of order imbalances for
securities, facilitate price discovery, and
minimize short-term price dislocation,
by allowing for the entry of offsetting
orders or the cancellation of orders on
the side of an imbalance.
An order imbalance may occur when
the Exchange receives a sudden influx
of orders for a particular security on the
same side of the market within a short
time interval, or when one or more
large-size orders for a security are
entered, and there is insufficient
offsetting interest.
When an imbalance in a security
exists, the Policy provides that the
Designated Market Maker (‘‘DMM’’) for
the security should widen the spread
between the bid and offer—a process
known as ‘‘gapping the quote.’’ The use
of a gap quote signals the existence of
the imbalance to the market in order to
4 The Exchange’s corporate affiliate, New York
Stock Exchange LLC (‘‘NYSE’’), has submitted an
identical companion filing updating its Gap Quote
Policy governing equities trading. See SR–NYSE–
2009–112. The proposed new Information Memo
will be jointly issued by both the Exchange and
NYSE.
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62851
attract contra-side liquidity and mitigate
volatility.
Gap quotes occur more frequently in
securities that are illiquid or thinly
traded than in securities that are very
liquid or heavily traded.5
History
In 2004, the NYSE updated its
policies and procedures for gapping the
quote, which had previously been
implemented in 1994.6 The NYSE
announced the updated policy through
a new Information Memo 04–27 (June 9,
2004), which it also filed with the
Commission.7 In 2007, the NYSE
changed the minimum size and value
requirements for use of gap quotes to at
least 10,000 shares or $200,000, and
updated the policies and procedures to
reflect technical changes to the market
and NYSE systems.8
Effective October, 1, 2008, NYSE
Euronext acquired The Amex
Membership Corporation (‘‘AMC’’)
pursuant to an Agreement and Plan of
Merger, dated January 17, 2008 (the
‘‘Merger’’).9 In connection with the
Merger, the Exchange’s predecessor, the
American Stock Exchange LLC
(‘‘Amex’’), a subsidiary of AMC, became
a subsidiary of NYSE Euronext called
NYSE Alternext US LLC, later renamed
NYSE Amex LLC.10 In connection with
the Merger, on December 1, 2008, the
Exchange relocated all equities trading
to systems and facilities located at 11
Wall Street, New York, New York (the
‘‘NYSE Amex Equities Trading
Systems’’), which are operated by the
NYSE on behalf of the Exchange.11 The
Exchange then adopted NYSE Rules 1–
1004 and related interpretive guidance
and policies, including NYSE
Information Memos 04–27 and 07–66, as
the NYSE Amex Equities Rules to
govern trading on the NYSE Amex
Equities Trading Systems.12
5 Currently, it is not cost-effective for the
Exchange to implement stock-specific gap quote
procedures.
6 See NYSE Information Memo 94–32 (August 9,
1994).
7 See Securities Exchange Act Release No. 50237
(August 24, 2004), 69 FR 53123 (August 31, 2004)
(SR–NYSE–2004–37) (concerning NYSE
Information Memo 04–27).
8 See NYSE Information Memo 07–66 (July 5,
2007). This Information Memo was not filed with
the Commission.
9 See Securities Exchange Act Release No. 58673
(September 29, 2008), 73 FR 57707 (October 3,
2008) (SR–NYSE–2008–60 and SR–Amex–2008–62)
(approving the Merger).
10 15 U.S.C. 78f.
11 See Securities Exchange Act Release No. 58705
(October 1, 2008), 73 FR 58995 (October 8, 2008)
(SR–Amex–2008–63) (approving the Equities
Relocation).
12 See Securities Exchange Act Release No. 58705
(October 1, 2008), 73 FR 58995 (October 8, 2008)
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01DEN1
]]>Agencies
[Federal Register Volume 74, Number 229 (Tuesday, December 1, 2009)]
[Notices]
[Pages 62849-62851]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28614]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-61046; File No. SR-NYSE-2009-114]
Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Modify the Sample Broker Letters Set Forth In Rule 451
November 20, 2009.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on November 16, 2009, New York Stock Exchange LLC (the ``Exchange'' or
``NYSE'') 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. The
Exchange has designated the proposed rule change as constituting a non-
controversial rule change under Rule 19b-4(f)(6) under the Act,\3\
which renders the proposal effective upon filing with the Commission.
The Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to amend Exchange Rule 451 and Sections
905.01, 905.02 and 905.03 of the Exchange's Listed Company Manual (the
``Manual'') to amend the forms of letters contained in those rules to
reflect the recent amendments to the Exchange's broker voting rules.
The text of the proposed rule change is available on the Exchange's
Web site (https://www.nyse.com), at the Exchange's Office of the
Secretary and at the Commission's Public Reference room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the 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 recently amended Exchange Rule 452 and Section 402.08
of the Manual to provide that brokers which are record holders of
shares held in client accounts will no longer be permitted to vote
those shares in the election of directors without instructions from the
beneficial holder of those shares.\4\ The amendments take effect for
shareholder meetings held on or after January 1, 2010, except to the
extent that a meeting was originally scheduled to be held prior to such
effective date but was properly adjourned to a date on or after such
effective date.\5\
---------------------------------------------------------------------------
\4\ See Securities Exchange Act Release No. 60215 (July 1, 2009)
74 FR 33293 (July 10, 2009) (SR-NYSE-2006-92).
\5\ The amendment does not affect brokers voting as record
holders of shares of companies registered under the Investment
Company Act of 1940.
---------------------------------------------------------------------------
Supplementary Material .20 to Exchange Rule 451 and Sections
905.01, 905.02 and 905.03 contain specimens of letters containing the
information and instructions required pursuant to the proxy rules to be
given by NYSE member organizations to clients where the member
organization is the record holder of shares beneficially owned by those
clients in the circumstances where a broker (i) may vote on all
proposals without voting instructions (Section 905.01), (ii) may not
vote on any proposals without instructions (Section 905.02), and (ii)
may vote on certain but not all proposals without instructions (Section
905.03). These letters are shown as examples and not as prescribed
forms. Member organizations are permitted to adapt the form of these
letters for their own purposes provided all of the required information
and instructions are clearly enumerated in letters to clients.
The Exchange is concerned that many shareholders receiving proxy
materials from their brokers for meetings scheduled after January 1,
2010 will not be aware of the amendments to the NYSE's broker voting
rules and may therefore assume that the broker as record holder will
vote their shares on the election of directors if they do not return
voting instructions to their broker. The NYSE believes it is important
for as many shares as possible to be voted in the election of directors
and, therefore, believes it is important to educate retail investors
with respect to the implications of their failure to return voting
instructions under the amended rules. Consequently, the Exchange
proposes to amend the forms of letters provided for use in connection
with meetings where the broker may vote on none of the proposals before
the meeting and meetings where the broker may vote on some but not all
of the proposals before the meeting. The proposed amendments will
insert the following language in those forms for use in connection with
meetings scheduled after January 1, 2010:
Please note that, under a rule amendment adopted by the New York
Stock Exchange for shareholder meetings held on or after January 1,
2010, brokers are no longer allowed to vote shares held in their
clients' accounts on uncontested elections of directors unless the
client has provided voting instructions (it will continue to be the
case that brokers cannot vote their clients' shares in contested
director elections). Consequently, if you want us to vote your
shares on your behalf on the election of directors, you must provide
voting instructions to us. Voting on matters presented at
shareholders meetings, particularly the election of directors, is
the primary method for shareholders to influence the direction taken
by a publicly-traded
[[Page 62850]]
company. We urge you to participate in the election by returning the
enclosed voting instruction form to us with instructions as to how
to vote your shares in this election.
The Exchange also proposes to amend Supplementary Material .20 to
Rule 451 and Sections 905.01, 905.02 and 905.03 of the Manual to
correct references in the text which indicate that the broker is
sending a ``proxy'' to its clients. In actuality, these letters are
intended for use in circumstances where the broker as record holder is
seeking voting instructions from its clients as beneficial holders. The
broker then provides a voting proxy to the company, voting according to
client instructions to the extent applicable. As such, the broker sends
a voting instruction form to its clients, rather than a proxy, and the
Exchange is amending the rule text to accurately reflect this fact.
Currently, the letters for use when the broker may not vote on any
proposals without instructions and may vote on certain but not all
proposals without instructions state that if a client returns a signed
voting instruction form without otherwise marking the form, the shares
will be voted as recommended by the management on all matters to be
considered at the meeting. Rule 14a-4(b)(1) under the Act provides that
``a proxy may confer discretionary authority with respect to matters as
to which a choice is not specified by the security holder provided that
the form of proxy states in bold-face type how it is intended to vote
the shares represented by the proxy in each such case.'' In light of
this requirement that it be made very clear that the absence of
instructions gives the broker discretion as to how the shares are
voted, the Exchange proposes to amend the language of the applicable
letters to emphasize this fact by clarifying that it is understood
that, if the client signs without otherwise marking the form, this will
be construed as instruction to vote the shares as recommended by the
management on all matters to be considered at the meeting.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) \6\ of the Act, in general, and furthers the
objectives of Section 6(b)(5) of the Act,\7\ in particular in that it
is designed to promote just and equitable principles of trade, to
foster cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest.
The Exchange believes that the proposed amendments are consistent with
the investor protection objectives of the Act in that their sole
purpose is to explain to shareholders the implications of failing to
provide voting instructions to their brokers, thereby enabling them to
make a more informed decision with respect to the exercise of their
voting rights.
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\6\ 15 U.S.C. 78f(b).
\7\ 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 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 were neither solicited nor received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Because the proposed rule change: (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, provided that the self-regulatory
organization has given the Commission written notice of its intent to
file 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 proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act \8\ and Rule 19b-
4(f)(6) thereunder.\9\
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\8\ 15 U.S.C. 78s(b)(3)(A).
\9\ 17 CFR 240.19b-4(f)(6). The Commission notes that the
Exchange has met this requirement.
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At any time within 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 rule-comments@sec.gov. Please include
File Number SR-NYSE-2009-114 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, Station Place, 100 F
Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2009-114. 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 such filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make publicly available. All
submissions should refer to File Number SR-NYSE-2009-114 and should be
submitted on or before December 22, 2009.
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\10\ 17 CFR 200.30-3(a)(12).
[[Page 62851]]
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For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
Elizabeth M. Murphy,
Secretary.
[FR Doc. E9-28614 Filed 11-30-09; 8:45 am]
BILLING CODE 8011-01-P
