Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To Amend the Listed Company Manual To Adopt Initial and Continued Listing Standards for Subscription Receipts, 48296-48300 [2017-22408]

Download as PDF 48296 Federal Register / Vol. 82, No. 199 / Tuesday, October 17, 2017 / Notices Exchanges will be subject to confidentiality restrictions.73 The Commission finds that the proposed process regarding amendments to the Proposed Certificates and Proposed Bylaws is consistent with Section 6(b)(1) of the Act, because it reflects the obligation of the Board to ensure compliance with the rule filing requirements under the Act. Additionally, the Commission finds these changes to be consistent with Section 19(b)(1) of the Act and Rule 19b–4 thereunder,74 which require that a self-regulatory organization file with the Commission all proposed rules, as well as all proposed changes in, additions to, and deletions of its existing rules. These provisions clarify that amendments to the Proposed Certificates and Proposed Bylaws constitute proposed rule changes within the meaning of Section 19(b)(2) of the Act and Rule 19b–4 thereunder, and are subject to the filing requirements of Section 19 of the Act and the rules and regulations thereunder. The Commission also finds that the prohibition on the use of regulatory fees or fines to fund non-regulatory purposes or to make distributions to the stockholder is consistent with Section 6(b)(1) of the Act,75 because it is designed to further each Exchange’s ability to effectively comply with its statutory obligations and is designed to ensure that the regulatory authority of the Exchange is not improperly used.76 This restriction on the use of regulatory funds is intended to preclude each Exchange from using its authority to raise regulatory funds for the purpose of benefiting its stockholder.77 C. Related Rule Amendments Each Exchange proposes to amend its rules in conjunction with the changes in the Proposed Bylaws.78 Specifically, each Exchange proposes to update certain cross-references to the bylaws in its rules and to move certain definitions from the bylaws to the rules.79 73 See Transaction Order, 81 FR at 93991–92. U.S.C. 78f(b)(1); 17 CFR 240.19b–4. 75 15 U.S.C. 78f(b)(1). 76 See, e.g., ISE Order, 82 FR at 36505 (approving a prohibition on the use of regulatory fines, fees, or penalties to pay dividends). See also CBOE Demutualization Order, 75 FR at 30089 (approving CBOE Rule 2.51). 77 See BYX Notice, 82 FR at 42138; BZX Notice, 82 FR at 42192; EDGA Notice, 82 FR at 42217; EDGX Notice, 82 FR at 42164. 78 See BYX Notice, 82 FR at 42139; BZX Notice, 82 FR at 42192–93; EDGA Notice, 82 FR at 42218; EDGX Notice, 82 FR at 42165. 79 See proposed BYX Rules 1.1, 2.10, and 8.6; proposed BZX Rules 1.1, 2.10, and 8.6; proposed EDGA Rules 1.1, 2.10, and 8.6; proposed EDGX Rules 1.1, 2.10, and 8.6. The Exchanges also propose to move the prohibition on the use of sradovich on DSK3GMQ082PROD with NOTICES 74 15 VerDate Sep<11>2014 17:10 Oct 16, 2017 Jkt 244001 The Commission finds that these proposed rule changes are consistent with the Act in that they are necessary to update cross-references and certain defined terms in the rules and would assist Exchange Members and the public in understanding the Exchanges’ rules. IV. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,80 that the proposed rule changes (SR–BatsBYX– 2017–19; SR–BatsBZX–2017–55; SR– BatsEDGA–2017–22; and SR– BatsEDGX–2017–35), each as modified by its respective Amendment No. 1, be, and hereby are, approved. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.81 Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2017–22387 Filed 10–16–17; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–81856; File No. SR–NYSE– 2017–31] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To Amend the Listed Company Manual To Adopt Initial and Continued Listing Standards for Subscription Receipts October 11, 2017. I. Introduction On June 26, 2017, New York Stock Exchange LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to amend the NYSE Listed Company Manual (‘‘Manual’’) to adopt initial and continued listing standards for Subscription Receipts. The proposed rule change was published for comment in the Federal Register on July 13, 2017.3 On October 3, 2017, the Exchange submitted Amendment No. 1 regulatory revenues for non-regulatory purposes from the Current Bylaws to the rules. See supra note 70 and accompanying text. 80 15 U.S.C. 78s(b)(2). 81 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 See Securities Exchange Act Release No. 81102 (July 7, 2017), 82 FR 32413 (‘‘Notice’’). PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 to the proposed rule change.4 The Commission is publishing this notice of Amendment No. 1 and approving the proposed rule change, as modified by Amendment No. 1, on an accelerated basis. II. Description of the Proposed Rule Change, as Modified by Amendment No. 1 The Exchange has proposed to adopt initial and continued listing standards for the listing of Subscription Receipts. In its proposal, NYSE generally described the structure of Subscription Receipts and noted that Subscriptions Receipts have been used as a financing technique by Canadian public companies.5 According to the Exchange, Canadian companies typically use Subscription Receipts as a means of providing cash consideration in merger or acquisition transactions.6 Subscription Receipts are sold in a public offering that occurs after the execution of an acquisition agreement. The proceeds of the Subscription Receipt offering are held in a custody account and, if the related acquisition closes, the Subscription Receipt holders will have their Subscription Receipts converted into a specified number of shares of the primary listed class of common stock of the issuer.7 If the acquisition does not close, the Subscription Receipts are redeemed for their original purchase price plus any interest accrued on the custody account. The Exchange stated in its proposal that Subscription Receipts provide a contingent form of financing for an issuer that only becomes permanent if the specified acquisition is completed.8 In contrast, the Exchange noted that a company financing the cash consideration for an acquisition by means of a traditional equity or debt 4 Amendment No. 1 amends the original filing to: (1) Correct a reference in the purpose section of the filing from a reference to Section 802.01 of the Manual to a reference to Sections 802.02 and 802.03 of the Manual; (2) change the proposed continued listing holder requirement from 100 total holders to 100 public holders; (3) provide that Subscription Receipts will be subject to immediate suspension and delisting proceedings (with no eligibility with respect to the procedures set forth in Sections 802.02 and 802.03 of the Manual) in the event that at any time there are fewer than 100,000 publiclyheld shares or 100 public holders of the Subscription Receipts; and (4) make clear that Subscription Receipts convert into primary common stock of the listed company. When the Exchange filed Amendment No. 1 with the Commission, it also submitted Amendment No. 1 to the public comment file for SR–NYSE–2017–31 (available at: https://www.sec.gov/comments/srnyse-2017-31/nyse201731.htm). 5 See Notice, supra note 3, at 32413. 6 See id. 7 See Amendment No. 1. 8 See Notice, supra note 3, at 32413. E:\FR\FM\17OCN1.SGM 17OCN1 Federal Register / Vol. 82, No. 199 / Tuesday, October 17, 2017 / Notices sradovich on DSK3GMQ082PROD with NOTICES offering is at risk of having incurred unnecessary dilution of its shareholders or indebtedness if the related acquisition fails to close.9 The Exchange further noted that Subscription Receipts provide investors with flexibility to elect to invest in the post-merger company and not in the company in its pre-merger form. The Exchange has proposed the following initial listing standards for Subscription Receipts: 10 (a) At the time of initial listing, the Subscription Receipts must have a price per share of at least $4.00, a minimum total market value of publicly-held shares of $100 million, 1,100,000 publicly-held shares,11 and 400 holders of round lots (i.e., 100 securities). (b) The issuer must be an NYSE listed company that is not currently noncompliant with any applicable continued listing standard. (c) The proceeds of the Subscription Receipts offering must be designated solely for use in connection with the consummation of a specified acquisition that is the subject of a binding acquisition agreement (the ‘‘Specified Acquisition’’). (d) The proceeds of the Subscription Receipts offering must be held in an interest-bearing custody account by an independent custodian. (e) The Subscription Receipts must promptly be redeemable for cash (i) at any time the Specified Acquisition is terminated, or (ii) if the Specified Acquisition does not close within twelve months from the date of issuance of the Subscription Receipts, or such earlier time as is specified in the operative agreements. If the Subscription Receipts are redeemed, the holders must receive cash payments equal to their proportionate share of the funds in the custody account, including any interest earned on those funds. (f) If the Specified Acquisition is consummated, the holders of the Subscription Receipts must receive the shares of common stock for which their Subscription Receipts are exchangeable. (g) The sale of the Subscription Receipts and the issuance of the common stock of the issuer in exchange for the Subscription Receipts must both be registered under the Securities Act of 1933.12 9 See id. id. 11 For purposes of the initial and continued listing requirements for Subscription Receipts, shares held by directors, officers, or their immediate families and other concentrated holdings of 10 percent or more are excluded in calculating the number of publicly-held shares. See proposed Sections 102.08 and 802.01B of the Manual. 12 See 15 U.S.C. 77a et seq. 10 See VerDate Sep<11>2014 17:10 Oct 16, 2017 Jkt 244001 The Exchange has also proposed to amend Section 802.01B of the Manual to include continued listing standards applicable to Subscription Receipts listed under proposed Section 102.08 of the Manual. In its filing, as modified by Amendment No. 1, the Exchange proposed to immediately initiate suspension and delisting procedures when: (i) The number of publicly-held shares is less than 100,000; (ii) the number of public holders is less than 100; 13 (iii) the total market capitalization of the Subscription Receipts is below $15 million over 30 consecutive trading days; (iv) the related common equity security ceases to be listed; or (v) the issuer announces that the Specified Acquisition has been terminated. An issuer of Subscription Receipts will not be eligible to follow the procedures outlined in Sections 802.02 and 802.03 of the Manual with respect to these criteria,14 and any such security will be subject to delisting procedures as set forth in Section 804 of the Manual.15 The Exchange also stated that Subscription Receipts will be subject to potential delisting for all of the reasons generally applicable to operating companies under Section 802.01 of the Manual.16 The Exchange further noted in its proposal that an issuer of Subscription Receipts may be subject to delisting at the time of closing of the related acquisition pursuant to the ‘‘backdoor listing’’ provisions of Section 703.08(E) of the Manual.17 Further, if the Specified Acquisition is consummated, as noted above, the Subscription Receipts convert into the primary listed class of common stock of the issuer, which will thereafter be 13 In adopting a continued listing requirement of 100 public holders, the Exchange notes that this is similar to other exchange continued listing standards. See, e.g., NASDAQ Marketplace Rule 5460(a)(4). See also Section 802.01D (providing continued listing standards for warrants, among other specialized securities). For purposes of the continued listing requirements for Subscription Receipts, ‘‘public holders’’ exclude holders that are directors, officers, or their immediate families and holders of other concentrated holdings of 10% or more. See proposed Section 802.01B of the Manual. 14 Sections 802.02 and 802.03 of the Manual set forth procedures for listed companies to submit a plan, which must be approved by the Exchange, to bring the listed company into conformity with a continued listing standard within eighteen months of receiving a letter of non-compliance. As noted above, an issuer of Subscription Receipts will not be eligible to utilize the procedures in Sections 802.02 or 802.03 of the Manual to submit a plan of compliance and instead will be subject to the procedures in Section 804 of the Manual. 15 Section 804 of the Manual sets forth the applicable due process procedures, including appeal rights, for the suspension and delisting of the securities of a listed company. 16 See Notice, supra note 3, at 32414. 17 See id. PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 48297 subject to all of the continued listing requirements applicable to a primary class of common stock listed on NYSE.18 The Exchange also has proposed to amend Section 202.06 of the Manual to provide that whenever it halts trading in a security of a listed company pending dissemination of material news or implements any other required regulatory trading halt, the Exchange will also halt trading in any listed Subscription Receipt that is exchangeable by its terms into the common stock of such company.19 The Exchange represented that it will monitor activity in Subscription Receipts to identify and deter any potential improper trading activity in such securities and will adopt enhanced surveillance procedures to enable it to monitor Subscription Receipts alongside the common equity securities into which they are convertible.20 Additionally, the Exchange states that it will rely on its existing trading surveillances, administered by the Exchange or the Financial Industry Regulatory Authority (‘‘FINRA’’) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities law. Finally, the Exchange has proposed to apply the listing fees for ‘‘short-term’’ securities (i.e., securities with a life of seven years or less), set forth in Section 902.06 of the Manual, to Subscription Receipts because these securities, as noted above, will be short-term securities that have a maximum term of twelve months.21 The Exchange has therefore proposed to amend Section 902.06 of the Manual to make it explicit that it will apply to Subscription Receipts. Finally, the Exchange proposes to amend Section 902.06 of the Manual to remove a reference to the annual fees charged prior to January 1, 2017, as that reference is now irrelevant. III. Discussion and Commission Findings The Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act and the rules and regulations 18 See Amendment No. 1. See also Section 802.01 of the Manual (providing the continued listing criteria for capital or common stock listed on NYSE). 19 See Notice, supra note 3, at 32414. 20 See id. 21 See id. E:\FR\FM\17OCN1.SGM 17OCN1 sradovich on DSK3GMQ082PROD with NOTICES 48298 Federal Register / Vol. 82, No. 199 / Tuesday, October 17, 2017 / Notices thereunder. Specifically, the Commission finds that the proposal is consistent with Section 6(b)(5) of the Act,22 which requires that an exchange have rules designed to, among other things, promote just and equitable principles of trade, remove impediments to an perfect the mechanisms of a free and open market and a national market system, protect investors and the public interest, and not permit unfair discrimination between customers, issuers, brokers, or dealers.23 The development and enforcement of adequate standards governing the initial and continued listing of securities on an exchange is an activity of critical importance to financial markets and the investing public. Listing standards, among other things, serve as a means for an exchange to screen issuers and to provide listed status only to bona fide companies that have or will have sufficient public float, investor base, and trading interest to provide the depth and liquidity necessary to promote fair and orderly markets. Adequate standards are especially important given the expectations of investors regarding exchange trading and the imprimatur of listing on a particular market. Once a security has been approved for initial listing, maintenance criteria allow an exchange to monitor the status and trading characteristics of that issue to ensure that it continues to meet the exchange’s standards for market depth and liquidity so that fair and orderly markets can be maintained. Subscription Receipts, as discussed by the Exchange in its proposal, are a financing technique to fund a Specified Acquisition. As NYSE noted in its filing, an issuer could sell equity securities to fund an acquisition, but if the acquisition doesn’t close, investors will still experience dilution in their holdings. Subscription Receipts allow investors the right to invest in the common stock of the listed company upon consummation of a Specified Acquisition. If the deal is not consummated within a short time frame of 12 months or less, the Subscription Receipt holders receive their pro rata share of the offering proceeds plus interest. In this sense, Subscription Receipts could be viewed as a security with characteristics of both equity and debt and are similar, but not identical to, other contingent securities with a right to receive common stock, such as 22 15 U.S.C. 78f(b)(5). approving this proposed rule change, the Commission notes that it has considered the proposed rules’ impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 23 In VerDate Sep<11>2014 17:10 Oct 16, 2017 Jkt 244001 warrants. At the time investors purchase a Subscription Receipt they will also have information about the Specified Acquisition and are making a decision to purchase stock in the listed postacquisition company. To address these unique characteristics, as discussed in more detail below, the Exchange has proposed to adopt new Section 102.08 to list Subscription Receipts, and specified continued listing standards. The proposed standards would permit NYSE to list, and continue to list, Subscription Receipts that meet specific criteria, including market value, distribution, and price requirements, which should help to ensure that the Subscription Receipts have sufficient public float, investor base, and liquidity to promote fair and orderly markets. In addition, issuers of Subscription Receipts would have to comply with other investor protection criteria in order to list Subscription Receipts, such as, among others, holding proceeds in a custodial account controlled by an independent custodian and providing shareholders with cash redemption rights should the Specified Acquisition be terminated or not close within 12 months. The Commission believes that the proposed initial and continued listing standards for Subscription Receipts are consistent with the requirements of the Act, including the protection of investors and the promotion of fair and orderly markets. At the time of initial listing, the Subscription Receipts must have a price per share of at least $4.00, a minimum total market value of publicly-held shares of $100 million, 1,100,000 publicly-held shares,24 and 400 holders of round lots (i.e., 100 securities). The Commission notes that the distribution criteria is the same that currently applies to the listing of common stock in connection with an initial public offering under NYSE listing rules and that the $100 million market value of publicly-held shares requirement is similar to the requirements for other initial listing of securities on the Exchange.25 The Commission believes that these standards should help ensure that a sufficient market, with adequate 24 For purposes of the initial and continued listing requirements for Subscription Receipts, shares held by directors, officers, or their immediate families and other concentrated holdings of 10 percent or more are excluded in calculating the number of publicly-held shares. See proposed Sections 102.08 and 802.01B of the Manual. 25 See Sections 102.01A and 102.01B of the Manual. PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 depth and liquidity, exists for the initial listing of Subscription Receipts.26 Similarly, the Commission believes the Exchange’s proposed continued listing standards for Subscription Receipts are consistent with the requirements of the Act and the protection of investors. Under the amended proposal, the Exchange will immediately initiate suspension and delisting procedures when (i) the number of publicly-held shares is less than 100,000, (ii) the number of public holders is less than 100,27 (iii) the total market capitalization of the Subscription Receipts is below $15 million over 30 consecutive trading days, (iv) the related common equity security ceases to be listed, or (v) the issuer announces that the Specified Acquisition has been terminated.28 In addition, Subscription Receipts will be subject to potential delisting for all of the reasons generally applicable to operating companies, including those outlined in Section 802.01D of the Manual, which discusses the factors and criteria that may result in delisting, and may also be subject to delisting at the time of closing of the related acquisition pursuant to the backdoor listing provisions of Section 703.08 of the Manual. The Commission notes the application of the backdoor listing provision will help to ensure that companies that would not otherwise qualify for original listing on the Exchange could not list, for example, by merging with a listed company. The Commission believes that these standards, taken together, should help ensure that a sufficient market, with adequate depth and liquidity, exists for the continued listing of Subscription Receipts and are similar to the continued listing standards for other securities that have similar characteristics.29 The Commission also notes that once the Specified 26 Because the issuer of the Subscription Receipt is already listing its primary common stock on the Exchange, it must comply with the continued listing standards for capital and common stock as well as the corporate governance requirements applicable to listed companies. 27 For purposes of the continued listing requirements for Subscription Receipts, ‘‘public holders’’ exclude holders that are directors, officers, or their immediate families and holders of other concentrated holdings of 10% or more. See proposed Section 802.01B of the Manual. 28 The Commission notes that an issuer of Subscription Receipts will not be eligible to follow the evaluation and follow-up procedures outlined in Sections 802.02 and 802.03 of the Manual with respect to these criteria, and any such security will be subject to delisting procedures as set forth in Section 804 of the Manual. 29 See, e.g., Section 802.01D of the Manual (providing the continued listing standards for certain types of specialized securities, including warrants). E:\FR\FM\17OCN1.SGM 17OCN1 sradovich on DSK3GMQ082PROD with NOTICES Federal Register / Vol. 82, No. 199 / Tuesday, October 17, 2017 / Notices Acquisition has occurred and a Subscription Receipt is converted to common stock, that common stock is subject to the continued listing requirements for capital or common stock in Section 802.01of the Manual.30 In addition to the quantitative listing requirements proposed for Subscription Receipts, the proposed initial and continued listing standards also include additional protections for Subscription Receipt holders. For example, the issuer of Subscription Receipts must be an NYSE listed company that is not currently non-compliant with any applicable continued listing standard and must continue to be listed on the Exchange throughout the time the Subscription Receipts are traded on the Exchange. The proposed rules also provide that whenever the Exchange halts trading in a security of a listed company pending dissemination of material news or implements any other required regulatory trading halt, the Exchange will also halt trading in any listed Subscription Receipt that is exchangeable by its terms into the common stock of such company. The Commission believes that these additional requirements should protect investors and the public interest, consistent with Section 6(b)(5) of the Act, by assuring that information with respect to the listed company issuing the Subscription Receipts is publicly available and that the issuing company is meeting all continued listing standards, including corporate governance requirements, of the Exchange. In addition, these requirements should help assure that the Exchange has a listing relationship with, and direct access to information from, the issuer of the Subscription Receipts. Among other things, this direct relationship the Exchange has with the listed company issuing the Subscription Receipts will help to ensure that the Exchange will receive information in a timely manner to halt trading in the Subscription Receipts when there is a material news, or other regulatory, trading halt imposed on the common stock, and other securities, of the listed company. There are additional protections for investors in the proposed standards. These include that all the proceeds of the Subscription Receipts offering must be designated solely for use in connection with the consummation of a Specified Acquisition pursuant to a definitive acquisition agreement, the material terms of which would be subject to disclosure. Additionally, the proceeds of the Subscription Receipts offering must also be held in an interestbearing custody account by an independent custodian and holders will promptly redeem the Subscription Receipts for cash, equal to the holder’s proportionate share of the funds in the custody account plus any interest earned, at any time the Specified Acquisition is terminated or if the Specified Acquisition does not close within twelve months from the date of issuance of the Subscription Receipts (or such earlier time as specified in the operative agreements). If the Specified Acquisition is consummated, the holders of the Subscription Receipts will receive the shares of common stock for which their Subscription Receipts are exchangeable. Finally, the listing standards specifically state and remind issuers that the sale of Subscription Receipts and the issuance of the common stock of the issuer in exchange for the Subscription Receipts must both be registered under the Securities Act of 1933.31 This is important because shareholders, at the time they purchase a Subscription Receipt, are making an investment decision to also purchase the common stock of the merged listed company should the Specified Acquisition be consummated, within twelve months or such shorter specified time period. Therefore, it is important to have registration and disclosure under the Securities Act of both the Subscription Receipt and the related common stock. Based on the above, the Commission believes that specifically setting forth the Securities Act registration requirements in the NYSE rules for listing Subscription Receipts is consistent with the requirements of Section 6(b)(5) of the Act to further investor protection and the public interest. The Exchange will also monitor activity in Subscription Receipts to identify and deter any potential improper trading activity in such securities and will adopt enhanced surveillance procedures to enable it to monitor Subscription Receipts alongside the common equity securities into which they are convertible. Since the Subscription Receipts are related to, and represent an interest in, the common stock of the post-acquisition listed company, this enhanced surveillance should help to monitor the trading activity in both the issuer’s listed common stock and the Subscription Receipts.32 31 See 15 U.S.C. 77a et seq. noted above, the Exchange will also rely on its existing trading surveillances, administered by the Exchange or FINRA on behalf of the Exchange, 32 As 30 See Section 802.01 of the Manual. See also Amendment No. 1. VerDate Sep<11>2014 17:10 Oct 16, 2017 Jkt 244001 PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 48299 The Commission believes that these safeguards and standards should help to ensure that the listing, and continued listing, of any Subscription Receipts on NYSE will be consistent with investor protection, the public interest, and the maintenance of fair and orderly markets. In this regard, the Commission expects NYSE to thoroughly review any potential listing of Subscription Receipts to ensure that its listing standards have been met and continue to be met, as well as to monitor trading in the Subscription Receipts and related common stock of the issuer. Based on the foregoing, the Commission finds that the proposed initial and continued listing standards are consistent with the Act. Finally, the Commission believes that the proposed fees set forth in Section 902.06 of the Manual are consistent with Section 6(b)(4) of the Act,33 in particular, in that they are designed to provide for the equitable allocation of reasonable dues, fees, and other charges, and are not designed to permit unfair discrimination among the Exchange’s members, issuers, and other persons using its facilities. The Commission notes that the proposed fees are the same as the fees applicable to similar short term securities under Rule 902.06 of the Manual. Based on the above, the Commission believes the proposed rule change, as amended, is reasonable and should provide for the listing of Subscription Receipts, with baseline investor protection and other standards. The Commission believes, as discussed above, that NYSE has developed sufficient standards to allow the listing of Subscription Receipts on the Exchange, and finds the proposal consistent with the requirements set forth under the Act, and in particular, Sections (6)(b)(4) and 6(b)(5).34 IV. Solicitation of Comments on Amendment No. 1 Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 1 is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s Internet comment form (http://www.sec.gov/ rules/sro.shtml); or which are designed to detect violations of Exchange rules and applicable federal securities laws. 33 15 U.S.C. 78f(b)(4). 34 15 U.S.C. 78s(b)(4) and (b)(5). E:\FR\FM\17OCN1.SGM 17OCN1 48300 Federal Register / Vol. 82, No. 199 / Tuesday, October 17, 2017 / Notices • Send an email to rule-comments@ sec.gov. Please include File Number SR– NYSE–2017–31 on the subject line. sradovich on DSK3GMQ082PROD with NOTICES Paper Comments • Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–NYSE–2017–31. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s Internet Web site (http://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing will also 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– 2017–31 and should be submitted on or before November 7, 2017. V. Accelerated Approval of Proposed Rule Change, as Modified by Amendment No. 1 The Commission finds good cause to approve the proposed rule change, as modified by Amendment No. 1, prior to the 30th day after the date of publication of the notice of Amendment No. 1 in the Federal Register. As noted above, in Amendment No. 1, the Exchange amended the original filing to correct an incorrect reference to the Manual in the purpose section of the filing, replace the proposed continued listing standard of 100 total holders with 100 public holders, add two additional continued listing standards— the 100,000 publicly-held shares requirement and the 100 public holder requirement—to the immediate VerDate Sep<11>2014 17:10 Oct 16, 2017 Jkt 244001 suspension and delisting proceeding provisions of Section 804 of the Manual, and provide a clarification that all Subscription Receipts convert into primary common stock of the issuer. The Commission notes that the revisions in Amendment No. 1 provide additional clarity and specificity to the proposal and do not raise any novel regulatory concerns. In addition, the changes to the continued listing standards strengthen the proposal and are consistent with investor protection. Finally, the Commission notes that the majority of the original proposal was not modified and was subject to a full notice-and-comment period, and no comments were received. Accordingly, the Commission finds that good cause exists to approve the proposal, as modified by Amendment No. 1, on an accelerated basis, pursuant to Section 19(b)(2) of the Act.35 VI. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,36 that the proposed rule change (SR–NYSE–2017– 31), as modified by Amendment No. 1 thereto, be, and hereby is, approved on an accelerated basis. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.37 Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2017–22408 Filed 10–16–17; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–81853; File No. SR–CBOE– 2017–057] Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change To Amend Interpretation and Policy .07 of Exchange Rule 4.11, Position Limits, To Increase the Position Limits for Options on Certain ETFs October 11, 2017. On August 15, 2017, Chicago Board Options Exchange, Incorporated (the ‘‘Exchange’’ or ‘‘CBOE’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to amend Interpretation and Policy .07 of Exchange Rule 4.11, Position Limits, to increase the position limits for options on the following exchange traded funds and exchange traded notes: iShares China Large-Cap ETF, iShares MSCI EAFE ETF, iShares MSCI Emerging Markets ETF, iShares Russell 2000 ETF, iShares MSCI Brazil Capped ETF, iShares 20+ Year Treasury Bond Fund ETF, iPath S&P 500 VIX Short-Term Futures ETN, PowerShares QQQ Trust, and iShares MSCI Japan ETF. The proposed rule change was published for comment in the Federal Register on August 31, 2017.3 The Commission received no comments regarding the proposal. Section 19(b)(2) of the Act 4 provides that within 45 days of the publication of notice of the filing of a proposed rule change, or within such longer period up to 90 days as the Commission may designate if it finds such longer period to be appropriate and publishes its reasons for so finding or as to which the self-regulatory organization consents, the Commission shall either approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether the proposed rule change should be disapproved. The 45th day for this filing is October 15, 2017. The Commission is extending the 45day time period for Commission action on the proposed rule change. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, pursuant to Section 19(b)(2) of the Act 5 and for the reasons stated above, the Commission designates November 29, 2017, as the date by which the Commission should either approve or disapprove, or institute proceedings to determine whether to disapprove, the proposed rule change (File No. SR–CBOE–2017– 057). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.6 Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2017–22390 Filed 10–16–17; 8:45 am] BILLING CODE 8011–01–P 2 17 CFR 240.19b–4. Securities Exchange Act Release No. 81483 (August 25, 2017), 82 FR 41457. 4 15 U.S.C. 78s(b)(2). 5 15 U.S.C. 78s(b)(2). 6 17 CFR 200.30–3(a)(31). 3 See 35 15 U.S.C. 78s(b)(2). U.S.C. 78s(b)(2). 37 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). 36 15 PO 00000 Frm 00089 Fmt 4703 Sfmt 9990 E:\FR\FM\17OCN1.SGM 17OCN1

Agencies

[Federal Register Volume 82, Number 199 (Tuesday, October 17, 2017)]
[Notices]
[Pages 48296-48300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-22408]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-81856; File No. SR-NYSE-2017-31]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing of Amendment No. 1 and Order Granting Accelerated 
Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To 
Amend the Listed Company Manual To Adopt Initial and Continued Listing 
Standards for Subscription Receipts

October 11, 2017.

I. Introduction

    On June 26, 2017, New York Stock Exchange LLC (``NYSE'' or the 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to amend the NYSE Listed Company Manual 
(``Manual'') to adopt initial and continued listing standards for 
Subscription Receipts. The proposed rule change was published for 
comment in the Federal Register on July 13, 2017.\3\ On October 3, 
2017, the Exchange submitted Amendment No. 1 to the proposed rule 
change.\4\ The Commission is publishing this notice of Amendment No. 1 
and approving the proposed rule change, as modified by Amendment No. 1, 
on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 81102 (July 7, 
2017), 82 FR 32413 (``Notice'').
    \4\ Amendment No. 1 amends the original filing to: (1) Correct a 
reference in the purpose section of the filing from a reference to 
Section 802.01 of the Manual to a reference to Sections 802.02 and 
802.03 of the Manual; (2) change the proposed continued listing 
holder requirement from 100 total holders to 100 public holders; (3) 
provide that Subscription Receipts will be subject to immediate 
suspension and delisting proceedings (with no eligibility with 
respect to the procedures set forth in Sections 802.02 and 802.03 of 
the Manual) in the event that at any time there are fewer than 
100,000 publicly-held shares or 100 public holders of the 
Subscription Receipts; and (4) make clear that Subscription Receipts 
convert into primary common stock of the listed company. When the 
Exchange filed Amendment No. 1 with the Commission, it also 
submitted Amendment No. 1 to the public comment file for SR-NYSE-
2017-31 (available at: https://www.sec.gov/comments/sr-nyse-2017-31/nyse201731.htm).
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II. Description of the Proposed Rule Change, as Modified by Amendment 
No. 1

    The Exchange has proposed to adopt initial and continued listing 
standards for the listing of Subscription Receipts. In its proposal, 
NYSE generally described the structure of Subscription Receipts and 
noted that Subscriptions Receipts have been used as a financing 
technique by Canadian public companies.\5\ According to the Exchange, 
Canadian companies typically use Subscription Receipts as a means of 
providing cash consideration in merger or acquisition transactions.\6\ 
Subscription Receipts are sold in a public offering that occurs after 
the execution of an acquisition agreement. The proceeds of the 
Subscription Receipt offering are held in a custody account and, if the 
related acquisition closes, the Subscription Receipt holders will have 
their Subscription Receipts converted into a specified number of shares 
of the primary listed class of common stock of the issuer.\7\ If the 
acquisition does not close, the Subscription Receipts are redeemed for 
their original purchase price plus any interest accrued on the custody 
account.
---------------------------------------------------------------------------

    \5\ See Notice, supra note 3, at 32413.
    \6\ See id.
    \7\ See Amendment No. 1.
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    The Exchange stated in its proposal that Subscription Receipts 
provide a contingent form of financing for an issuer that only becomes 
permanent if the specified acquisition is completed.\8\ In contrast, 
the Exchange noted that a company financing the cash consideration for 
an acquisition by means of a traditional equity or debt

[[Page 48297]]

offering is at risk of having incurred unnecessary dilution of its 
shareholders or indebtedness if the related acquisition fails to 
close.\9\ The Exchange further noted that Subscription Receipts provide 
investors with flexibility to elect to invest in the post-merger 
company and not in the company in its pre-merger form.
---------------------------------------------------------------------------

    \8\ See Notice, supra note 3, at 32413.
    \9\ See id.
---------------------------------------------------------------------------

    The Exchange has proposed the following initial listing standards 
for Subscription Receipts: \10\
---------------------------------------------------------------------------

    \10\ See id.
---------------------------------------------------------------------------

    (a) At the time of initial listing, the Subscription Receipts must 
have a price per share of at least $4.00, a minimum total market value 
of publicly-held shares of $100 million, 1,100,000 publicly-held 
shares,\11\ and 400 holders of round lots (i.e., 100 securities).
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    \11\ For purposes of the initial and continued listing 
requirements for Subscription Receipts, shares held by directors, 
officers, or their immediate families and other concentrated 
holdings of 10 percent or more are excluded in calculating the 
number of publicly-held shares. See proposed Sections 102.08 and 
802.01B of the Manual.
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    (b) The issuer must be an NYSE listed company that is not currently 
non-compliant with any applicable continued listing standard.
    (c) The proceeds of the Subscription Receipts offering must be 
designated solely for use in connection with the consummation of a 
specified acquisition that is the subject of a binding acquisition 
agreement (the ``Specified Acquisition'').
    (d) The proceeds of the Subscription Receipts offering must be held 
in an interest-bearing custody account by an independent custodian.
    (e) The Subscription Receipts must promptly be redeemable for cash 
(i) at any time the Specified Acquisition is terminated, or (ii) if the 
Specified Acquisition does not close within twelve months from the date 
of issuance of the Subscription Receipts, or such earlier time as is 
specified in the operative agreements. If the Subscription Receipts are 
redeemed, the holders must receive cash payments equal to their 
proportionate share of the funds in the custody account, including any 
interest earned on those funds.
    (f) If the Specified Acquisition is consummated, the holders of the 
Subscription Receipts must receive the shares of common stock for which 
their Subscription Receipts are exchangeable.
    (g) The sale of the Subscription Receipts and the issuance of the 
common stock of the issuer in exchange for the Subscription Receipts 
must both be registered under the Securities Act of 1933.\12\
---------------------------------------------------------------------------

    \12\ See 15 U.S.C. 77a et seq.
---------------------------------------------------------------------------

    The Exchange has also proposed to amend Section 802.01B of the 
Manual to include continued listing standards applicable to 
Subscription Receipts listed under proposed Section 102.08 of the 
Manual. In its filing, as modified by Amendment No. 1, the Exchange 
proposed to immediately initiate suspension and delisting procedures 
when: (i) The number of publicly-held shares is less than 100,000; (ii) 
the number of public holders is less than 100; \13\ (iii) the total 
market capitalization of the Subscription Receipts is below $15 million 
over 30 consecutive trading days; (iv) the related common equity 
security ceases to be listed; or (v) the issuer announces that the 
Specified Acquisition has been terminated.
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    \13\ In adopting a continued listing requirement of 100 public 
holders, the Exchange notes that this is similar to other exchange 
continued listing standards. See, e.g., NASDAQ Marketplace Rule 
5460(a)(4). See also Section 802.01D (providing continued listing 
standards for warrants, among other specialized securities). For 
purposes of the continued listing requirements for Subscription 
Receipts, ``public holders'' exclude holders that are directors, 
officers, or their immediate families and holders of other 
concentrated holdings of 10% or more. See proposed Section 802.01B 
of the Manual.
---------------------------------------------------------------------------

    An issuer of Subscription Receipts will not be eligible to follow 
the procedures outlined in Sections 802.02 and 802.03 of the Manual 
with respect to these criteria,\14\ and any such security will be 
subject to delisting procedures as set forth in Section 804 of the 
Manual.\15\ The Exchange also stated that Subscription Receipts will be 
subject to potential delisting for all of the reasons generally 
applicable to operating companies under Section 802.01 of the 
Manual.\16\ The Exchange further noted in its proposal that an issuer 
of Subscription Receipts may be subject to delisting at the time of 
closing of the related acquisition pursuant to the ``backdoor listing'' 
provisions of Section 703.08(E) of the Manual.\17\ Further, if the 
Specified Acquisition is consummated, as noted above, the Subscription 
Receipts convert into the primary listed class of common stock of the 
issuer, which will thereafter be subject to all of the continued 
listing requirements applicable to a primary class of common stock 
listed on NYSE.\18\
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    \14\ Sections 802.02 and 802.03 of the Manual set forth 
procedures for listed companies to submit a plan, which must be 
approved by the Exchange, to bring the listed company into 
conformity with a continued listing standard within eighteen months 
of receiving a letter of non-compliance. As noted above, an issuer 
of Subscription Receipts will not be eligible to utilize the 
procedures in Sections 802.02 or 802.03 of the Manual to submit a 
plan of compliance and instead will be subject to the procedures in 
Section 804 of the Manual.
    \15\ Section 804 of the Manual sets forth the applicable due 
process procedures, including appeal rights, for the suspension and 
delisting of the securities of a listed company.
    \16\ See Notice, supra note 3, at 32414.
    \17\ See id.
    \18\ See Amendment No. 1. See also Section 802.01 of the Manual 
(providing the continued listing criteria for capital or common 
stock listed on NYSE).
---------------------------------------------------------------------------

    The Exchange also has proposed to amend Section 202.06 of the 
Manual to provide that whenever it halts trading in a security of a 
listed company pending dissemination of material news or implements any 
other required regulatory trading halt, the Exchange will also halt 
trading in any listed Subscription Receipt that is exchangeable by its 
terms into the common stock of such company.\19\
---------------------------------------------------------------------------

    \19\ See Notice, supra note 3, at 32414.
---------------------------------------------------------------------------

    The Exchange represented that it will monitor activity in 
Subscription Receipts to identify and deter any potential improper 
trading activity in such securities and will adopt enhanced 
surveillance procedures to enable it to monitor Subscription Receipts 
alongside the common equity securities into which they are 
convertible.\20\ Additionally, the Exchange states that it will rely on 
its existing trading surveillances, administered by the Exchange or the 
Financial Industry Regulatory Authority (``FINRA'') on behalf of the 
Exchange, which are designed to detect violations of Exchange rules and 
applicable federal securities law.
---------------------------------------------------------------------------

    \20\ See id.
---------------------------------------------------------------------------

    Finally, the Exchange has proposed to apply the listing fees for 
``short-term'' securities (i.e., securities with a life of seven years 
or less), set forth in Section 902.06 of the Manual, to Subscription 
Receipts because these securities, as noted above, will be short-term 
securities that have a maximum term of twelve months.\21\ The Exchange 
has therefore proposed to amend Section 902.06 of the Manual to make it 
explicit that it will apply to Subscription Receipts. Finally, the 
Exchange proposes to amend Section 902.06 of the Manual to remove a 
reference to the annual fees charged prior to January 1, 2017, as that 
reference is now irrelevant.
---------------------------------------------------------------------------

    \21\ See id.
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III. Discussion and Commission Findings

    The Commission finds that the proposed rule change, as modified by 
Amendment No. 1, is consistent with the requirements of the Act and the 
rules and regulations thereunder applicable to a national securities 
exchange and, in particular, the requirements of Section 6(b) of the 
Act and the rules and regulations

[[Page 48298]]

thereunder. Specifically, the Commission finds that the proposal is 
consistent with Section 6(b)(5) of the Act,\22\ which requires that an 
exchange have rules designed to, among other things, promote just and 
equitable principles of trade, remove impediments to an perfect the 
mechanisms of a free and open market and a national market system, 
protect investors and the public interest, and not permit unfair 
discrimination between customers, issuers, brokers, or dealers.\23\
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    \22\ 15 U.S.C. 78f(b)(5).
    \23\ In approving this proposed rule change, the Commission 
notes that it has considered the proposed rules' impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
---------------------------------------------------------------------------

    The development and enforcement of adequate standards governing the 
initial and continued listing of securities on an exchange is an 
activity of critical importance to financial markets and the investing 
public. Listing standards, among other things, serve as a means for an 
exchange to screen issuers and to provide listed status only to bona 
fide companies that have or will have sufficient public float, investor 
base, and trading interest to provide the depth and liquidity necessary 
to promote fair and orderly markets. Adequate standards are especially 
important given the expectations of investors regarding exchange 
trading and the imprimatur of listing on a particular market. Once a 
security has been approved for initial listing, maintenance criteria 
allow an exchange to monitor the status and trading characteristics of 
that issue to ensure that it continues to meet the exchange's standards 
for market depth and liquidity so that fair and orderly markets can be 
maintained.
    Subscription Receipts, as discussed by the Exchange in its 
proposal, are a financing technique to fund a Specified Acquisition. As 
NYSE noted in its filing, an issuer could sell equity securities to 
fund an acquisition, but if the acquisition doesn't close, investors 
will still experience dilution in their holdings. Subscription Receipts 
allow investors the right to invest in the common stock of the listed 
company upon consummation of a Specified Acquisition. If the deal is 
not consummated within a short time frame of 12 months or less, the 
Subscription Receipt holders receive their pro rata share of the 
offering proceeds plus interest. In this sense, Subscription Receipts 
could be viewed as a security with characteristics of both equity and 
debt and are similar, but not identical to, other contingent securities 
with a right to receive common stock, such as warrants. At the time 
investors purchase a Subscription Receipt they will also have 
information about the Specified Acquisition and are making a decision 
to purchase stock in the listed post-acquisition company.
    To address these unique characteristics, as discussed in more 
detail below, the Exchange has proposed to adopt new Section 102.08 to 
list Subscription Receipts, and specified continued listing standards. 
The proposed standards would permit NYSE to list, and continue to list, 
Subscription Receipts that meet specific criteria, including market 
value, distribution, and price requirements, which should help to 
ensure that the Subscription Receipts have sufficient public float, 
investor base, and liquidity to promote fair and orderly markets. In 
addition, issuers of Subscription Receipts would have to comply with 
other investor protection criteria in order to list Subscription 
Receipts, such as, among others, holding proceeds in a custodial 
account controlled by an independent custodian and providing 
shareholders with cash redemption rights should the Specified 
Acquisition be terminated or not close within 12 months.
    The Commission believes that the proposed initial and continued 
listing standards for Subscription Receipts are consistent with the 
requirements of the Act, including the protection of investors and the 
promotion of fair and orderly markets.
    At the time of initial listing, the Subscription Receipts must have 
a price per share of at least $4.00, a minimum total market value of 
publicly-held shares of $100 million, 1,100,000 publicly-held 
shares,\24\ and 400 holders of round lots (i.e., 100 securities). The 
Commission notes that the distribution criteria is the same that 
currently applies to the listing of common stock in connection with an 
initial public offering under NYSE listing rules and that the $100 
million market value of publicly-held shares requirement is similar to 
the requirements for other initial listing of securities on the 
Exchange.\25\ The Commission believes that these standards should help 
ensure that a sufficient market, with adequate depth and liquidity, 
exists for the initial listing of Subscription Receipts.\26\
---------------------------------------------------------------------------

    \24\ For purposes of the initial and continued listing 
requirements for Subscription Receipts, shares held by directors, 
officers, or their immediate families and other concentrated 
holdings of 10 percent or more are excluded in calculating the 
number of publicly-held shares. See proposed Sections 102.08 and 
802.01B of the Manual.
    \25\ See Sections 102.01A and 102.01B of the Manual.
    \26\ Because the issuer of the Subscription Receipt is already 
listing its primary common stock on the Exchange, it must comply 
with the continued listing standards for capital and common stock as 
well as the corporate governance requirements applicable to listed 
companies.
---------------------------------------------------------------------------

    Similarly, the Commission believes the Exchange's proposed 
continued listing standards for Subscription Receipts are consistent 
with the requirements of the Act and the protection of investors. Under 
the amended proposal, the Exchange will immediately initiate suspension 
and delisting procedures when (i) the number of publicly-held shares is 
less than 100,000, (ii) the number of public holders is less than 
100,\27\ (iii) the total market capitalization of the Subscription 
Receipts is below $15 million over 30 consecutive trading days, (iv) 
the related common equity security ceases to be listed, or (v) the 
issuer announces that the Specified Acquisition has been 
terminated.\28\ In addition, Subscription Receipts will be subject to 
potential delisting for all of the reasons generally applicable to 
operating companies, including those outlined in Section 802.01D of the 
Manual, which discusses the factors and criteria that may result in 
delisting, and may also be subject to delisting at the time of closing 
of the related acquisition pursuant to the backdoor listing provisions 
of Section 703.08 of the Manual. The Commission notes the application 
of the backdoor listing provision will help to ensure that companies 
that would not otherwise qualify for original listing on the Exchange 
could not list, for example, by merging with a listed company.
---------------------------------------------------------------------------

    \27\ For purposes of the continued listing requirements for 
Subscription Receipts, ``public holders'' exclude holders that are 
directors, officers, or their immediate families and holders of 
other concentrated holdings of 10% or more. See proposed Section 
802.01B of the Manual.
    \28\ The Commission notes that an issuer of Subscription 
Receipts will not be eligible to follow the evaluation and follow-up 
procedures outlined in Sections 802.02 and 802.03 of the Manual with 
respect to these criteria, and any such security will be subject to 
delisting procedures as set forth in Section 804 of the Manual.
---------------------------------------------------------------------------

    The Commission believes that these standards, taken together, 
should help ensure that a sufficient market, with adequate depth and 
liquidity, exists for the continued listing of Subscription Receipts 
and are similar to the continued listing standards for other securities 
that have similar characteristics.\29\ The Commission also notes that 
once the Specified

[[Page 48299]]

Acquisition has occurred and a Subscription Receipt is converted to 
common stock, that common stock is subject to the continued listing 
requirements for capital or common stock in Section 802.01of the 
Manual.\30\
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    \29\ See, e.g., Section 802.01D of the Manual (providing the 
continued listing standards for certain types of specialized 
securities, including warrants).
    \30\ See Section 802.01 of the Manual. See also Amendment No. 1.
---------------------------------------------------------------------------

    In addition to the quantitative listing requirements proposed for 
Subscription Receipts, the proposed initial and continued listing 
standards also include additional protections for Subscription Receipt 
holders. For example, the issuer of Subscription Receipts must be an 
NYSE listed company that is not currently non-compliant with any 
applicable continued listing standard and must continue to be listed on 
the Exchange throughout the time the Subscription Receipts are traded 
on the Exchange. The proposed rules also provide that whenever the 
Exchange halts trading in a security of a listed company pending 
dissemination of material news or implements any other required 
regulatory trading halt, the Exchange will also halt trading in any 
listed Subscription Receipt that is exchangeable by its terms into the 
common stock of such company.
    The Commission believes that these additional requirements should 
protect investors and the public interest, consistent with Section 
6(b)(5) of the Act, by assuring that information with respect to the 
listed company issuing the Subscription Receipts is publicly available 
and that the issuing company is meeting all continued listing 
standards, including corporate governance requirements, of the 
Exchange. In addition, these requirements should help assure that the 
Exchange has a listing relationship with, and direct access to 
information from, the issuer of the Subscription Receipts. Among other 
things, this direct relationship the Exchange has with the listed 
company issuing the Subscription Receipts will help to ensure that the 
Exchange will receive information in a timely manner to halt trading in 
the Subscription Receipts when there is a material news, or other 
regulatory, trading halt imposed on the common stock, and other 
securities, of the listed company.
    There are additional protections for investors in the proposed 
standards. These include that all the proceeds of the Subscription 
Receipts offering must be designated solely for use in connection with 
the consummation of a Specified Acquisition pursuant to a definitive 
acquisition agreement, the material terms of which would be subject to 
disclosure. Additionally, the proceeds of the Subscription Receipts 
offering must also be held in an interest-bearing custody account by an 
independent custodian and holders will promptly redeem the Subscription 
Receipts for cash, equal to the holder's proportionate share of the 
funds in the custody account plus any interest earned, at any time the 
Specified Acquisition is terminated or if the Specified Acquisition 
does not close within twelve months from the date of issuance of the 
Subscription Receipts (or such earlier time as specified in the 
operative agreements). If the Specified Acquisition is consummated, the 
holders of the Subscription Receipts will receive the shares of common 
stock for which their Subscription Receipts are exchangeable. Finally, 
the listing standards specifically state and remind issuers that the 
sale of Subscription Receipts and the issuance of the common stock of 
the issuer in exchange for the Subscription Receipts must both be 
registered under the Securities Act of 1933.\31\ This is important 
because shareholders, at the time they purchase a Subscription Receipt, 
are making an investment decision to also purchase the common stock of 
the merged listed company should the Specified Acquisition be 
consummated, within twelve months or such shorter specified time 
period. Therefore, it is important to have registration and disclosure 
under the Securities Act of both the Subscription Receipt and the 
related common stock. Based on the above, the Commission believes that 
specifically setting forth the Securities Act registration requirements 
in the NYSE rules for listing Subscription Receipts is consistent with 
the requirements of Section 6(b)(5) of the Act to further investor 
protection and the public interest.
---------------------------------------------------------------------------

    \31\ See 15 U.S.C. 77a et seq.
---------------------------------------------------------------------------

    The Exchange will also monitor activity in Subscription Receipts to 
identify and deter any potential improper trading activity in such 
securities and will adopt enhanced surveillance procedures to enable it 
to monitor Subscription Receipts alongside the common equity securities 
into which they are convertible. Since the Subscription Receipts are 
related to, and represent an interest in, the common stock of the post-
acquisition listed company, this enhanced surveillance should help to 
monitor the trading activity in both the issuer's listed common stock 
and the Subscription Receipts.\32\
---------------------------------------------------------------------------

    \32\ As noted above, the Exchange will also rely on its existing 
trading surveillances, administered by the Exchange or FINRA on 
behalf of the Exchange, which are designed to detect violations of 
Exchange rules and applicable federal securities laws.
---------------------------------------------------------------------------

    The Commission believes that these safeguards and standards should 
help to ensure that the listing, and continued listing, of any 
Subscription Receipts on NYSE will be consistent with investor 
protection, the public interest, and the maintenance of fair and 
orderly markets. In this regard, the Commission expects NYSE to 
thoroughly review any potential listing of Subscription Receipts to 
ensure that its listing standards have been met and continue to be met, 
as well as to monitor trading in the Subscription Receipts and related 
common stock of the issuer. Based on the foregoing, the Commission 
finds that the proposed initial and continued listing standards are 
consistent with the Act.
    Finally, the Commission believes that the proposed fees set forth 
in Section 902.06 of the Manual are consistent with Section 6(b)(4) of 
the Act,\33\ in particular, in that they are designed to provide for 
the equitable allocation of reasonable dues, fees, and other charges, 
and are not designed to permit unfair discrimination among the 
Exchange's members, issuers, and other persons using its facilities. 
The Commission notes that the proposed fees are the same as the fees 
applicable to similar short term securities under Rule 902.06 of the 
Manual.
---------------------------------------------------------------------------

    \33\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    Based on the above, the Commission believes the proposed rule 
change, as amended, is reasonable and should provide for the listing of 
Subscription Receipts, with baseline investor protection and other 
standards. The Commission believes, as discussed above, that NYSE has 
developed sufficient standards to allow the listing of Subscription 
Receipts on the Exchange, and finds the proposal consistent with the 
requirements set forth under the Act, and in particular, Sections 
(6)(b)(4) and 6(b)(5).\34\
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    \34\ 15 U.S.C. 78s(b)(4) and (b)(5).
---------------------------------------------------------------------------

IV. Solicitation of Comments on Amendment No. 1

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether Amendment No. 1 
is consistent with the Act. Comments may be submitted by any of the 
following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or

[[Page 48300]]

     Send an email to rule-comments@sec.gov. Please include 
File Number SR-NYSE-2017-31 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2017-31. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of the filing will also 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-2017-31 and should be 
submitted on or before November 7, 2017.

V. Accelerated Approval of Proposed Rule Change, as Modified by 
Amendment No. 1

    The Commission finds good cause to approve the proposed rule 
change, as modified by Amendment No. 1, prior to the 30th day after the 
date of publication of the notice of Amendment No. 1 in the Federal 
Register. As noted above, in Amendment No. 1, the Exchange amended the 
original filing to correct an incorrect reference to the Manual in the 
purpose section of the filing, replace the proposed continued listing 
standard of 100 total holders with 100 public holders, add two 
additional continued listing standards--the 100,000 publicly-held 
shares requirement and the 100 public holder requirement--to the 
immediate suspension and delisting proceeding provisions of Section 804 
of the Manual, and provide a clarification that all Subscription 
Receipts convert into primary common stock of the issuer.
    The Commission notes that the revisions in Amendment No. 1 provide 
additional clarity and specificity to the proposal and do not raise any 
novel regulatory concerns. In addition, the changes to the continued 
listing standards strengthen the proposal and are consistent with 
investor protection. Finally, the Commission notes that the majority of 
the original proposal was not modified and was subject to a full 
notice-and-comment period, and no comments were received. Accordingly, 
the Commission finds that good cause exists to approve the proposal, as 
modified by Amendment No. 1, on an accelerated basis, pursuant to 
Section 19(b)(2) of the Act.\35\
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    \35\ 15 U.S.C. 78s(b)(2).
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VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\36\ that the proposed rule change (SR-NYSE-2017-31), as modified 
by Amendment No. 1 thereto, be, and hereby is, approved on an 
accelerated basis.
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    \36\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\37\
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    \37\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-22408 Filed 10-16-17; 8:45 am]
BILLING CODE 8011-01-P