[Federal Register: August 21, 2008 (Volume 73, Number 163)]
[Notices]
[Page 49508-49511]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21au08-96]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-58364; File No. SR-Amex-2008-65]
Self-Regulatory Organizations; Notice of Filing of a Proposed
Rule Change by the American Stock Exchange LLC To Allow Issuers
Voluntarily Delisting ETFs and Structured Products To Submit to the
Exchange a Letter From an Authorized Officer of the Issuer Rather Than
a Board Resolution
August 14, 2008.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of
1934, as amended (``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is
hereby given that on August 7, 2008, the American Stock Exchange LLC
(``Amex'' or ``Exchange'') filed with the Securities and Exchange
Commission (``SEC'' or ``Commission'') the proposed rule change as
described in Items I and II 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.
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\1\ 15 U.S.C. 78s(b)(l).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to amend Exchange Rule 18 to allow issuers
voluntarily delisting ETFs and
[[Page 49509]]
structured products to submit to the Exchange a letter from an
authorized officer of the issuer rather than a certified copy of a
board resolution.
The text of the proposed rule change is available on the Amex's Web
site at http://www.amex.com, the Office of the Secretary, the Amex and
at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Amex included statements
concerning the purpose of, and basis for, the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item III below. The Amex has prepared summaries, set forth in sections
(A), (B), and (C) below, of the most significant aspects of such
statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to amend the voluntary delisting procedures
set forth in Exchange Rule 18 for issuers of securities listed pursuant
to Sections 104 (Bonds and Debentures), 106 (Currency and Index
Warrants) or 107 (Other Securities) of the Amex Company Guide and
Exchange Rules 1000-AEMI and 1001 et seq. (Portfolio Depositary
Receipts), 1000A-AEMI and 1001A et seq. (Index Fund Shares), 1000B et
seq. (Managed Fund Shares), 1200-AEMI and 1201 et seq. (Trading of
Trust Issued Receipts), 1200A-AEMI and 1201A et seq. (Commodity-Based
Trust Shares), 1400 et seq. (Trading of Paired Trust Shares), 1500-AEMI
and 1501 et seq. (Trading of Partnership Units), or 1600 et seq.
(Trading of Trust Units). Exchange Rule 18 requires companies
voluntarily withdrawing securities from listing to provide to the
Exchange a certified copy of the resolution of the board of directors
of the issuer authorizing such action. The Exchange proposes to amend
Rule 18 to provide that, in the case of a voluntary delisting where the
listing of the securities is being transferred to another national
securities exchange, the issuer will be required to provide, in lieu of
a certified copy of a board resolution, a letter signed by an
authorized executive officer setting forth the reasons for the proposed
listing withdrawal and the basis for the officer's authority to take
such action.
Pursuant to a merger agreement dated January 17, 2008 among the
Exchange, the Amex Membership Corporation, NYSE Euronext and certain
other entities, a successor to the Exchange will become an indirect,
wholly-owned subsidiary of NYSE Euronext (the ``Acquisition''). As part
of its strategic business planning for the post-merger group, NYSE
Euronext intends to cease listing and trading exchange-traded funds and
structured products (including, for example, index-linked securities
such as index-linked notes) on the Amex shortly after the completion of
the acquisition and plans to encourage issuers to move the listing of
those securities from the Amex to its subsidiary, NYSE Arca, Inc.
(``NYSE Arca'') and the New York Stock Exchange LLC (specifically, the
NYSE Bonds platform).
As the change of listing venue contemplated by this business plan
will require the delisting of the securities from the Exchange, and
there is no basis under Exchange rules for a delisting initiated by the
Exchange itself under these circumstances, the issuers will have to
withdraw their securities from listing voluntarily pursuant to Exchange
Rule 18 and SEC Rule 12d2-2.\3\ Because the change of listing venue
will be effectuated at the request of NYSE Euronext as owner of the
Exchange, and obtaining a certified copy of the board resolutions as
required by Rule 18 may be burdensome for the issuers involved, the
Exchange believes that it is appropriate to provide an alternative to
this requirement for the securities that, pursuant to the NYSE Euronext
business plan, will no longer be listed on the Amex (or the Amex's
successor).\4\
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\3\ Following a withdrawal of listing, an issuer may then list
on any national securities exchange if it meets the listing
standards of that exchange or may remain unlisted.
\4\ Some of these issuers are not required, by their
constitutive documents or the laws of their jurisdictions of
incorporation, to get board approval for withdrawal of listing and
therefore only Rule 18 would require separate board action. For
other issuers, the proposed option of providing a letter would allow
them to make the listing change on a more timely and economical
basis, while still having to comply with the requirements of their
constitutive documents and the laws of their jurisdictions of
incorporation.
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In lieu of the board resolution, the issuer will be required to
provide a letter signed by an authorized executive officer setting
forth the reasons for the proposed withdrawal and the basis for the
officer's authority to take such action. Requiring a letter from an
authorized executive officer that includes the reasons for the proposed
withdrawal and the basis for the officer's authority to take such
action will ensure that the issuer properly made the delisting decision
and complied with its constitutive documents and applicable laws in
effect in its jurisdiction, consistent with investor protection and the
public interest.\5\ The proposed rule specifies that the letter will
only be accepted for purposes of withdrawal of listing where the
listing of the securities is being transferred to another national
securities exchange.
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\5\ The basis for the officer's authority may be, for example,
relevant provisions in the issuer's constitutive documents or board
resolutions setting out the delegation of authority to the executive
officer.
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The Exchange believes that changing the rule to allow this
exception to the requirements of Exchange Rule 18 for these classes of
securities is appropriate for a number of reasons. First, only issuers
that are planning to transfer their listing to another national
securities exchange will be able to provide the letter from an
authorized executive officer; in the event an issuer decides no longer
to be listed on an exchange, Rule 18 will still require board
resolutions to effect the delisting. Secondly, separate board approval
of a change of listing venue is not required of many of the issuers
covered by the proposed rule. To the extent board approval is otherwise
required by, for example, the governing documents of an eligible listed
issuer or the law of the jurisdiction in which the issuer is
incorporated, the proposed rule change would change only the form in
which the Exchange must be notified of the decision to delist, not the
legal requirements for approval that apply to the particular issuer.\6\
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\6\ Notwithstanding this proposal, issuers will have to comply
with Rule 12d2-2(c) and any other applicable provisions under the
Act to withdraw their securities from listing on the Exchange.
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Finally, the Exchange believes the proposed change is justified
because the withdrawal from listing of the applicable types of issuers
would be occurring at the Exchange's request to further a business
objective of the Exchange's parent company. Following the effectuation
of this business plan, these types of securities will no longer be
listed on the Amex, and it is therefore appropriate for Exchange to
facilitate the withdrawal process, with the conditions proposed.
The Exchange also proposes to make other minor clarifying changes
to Section 1010, and to delete from Section 1010 the re-statement of
Exchange Rule 18 and Rule 12d2-2 under the Act.
[[Page 49510]]
Implementation
This rule filing is being made to implement a NYSE Euronext
business plan for the Amex after the completion of the Acquisition and
the rule text will specify that the rule will become operative as of
the date of the closing of the Acquisition and that in the event that
the Acquisition has not been effected on or before December 31, 2008,
the rule will not take effect. In the event that the rule change does
not take effect, the Exchange will rescind the approved rule text by a
separate filing with the Commission.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6 of the Act in general and furthers the objectives of
Section 6(b)(5) \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, and to remove impediments to and perfect the mechanism
of a free and open market and a national market system and, in general,
to protect investors and the public interest.
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\7\ 15 U.S.C. 78f(b)(5).
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The Exchange notes that requiring a letter from an authorized
executive officer instead of a certified copy of the resolutions
adopted by the issuer's board of directors is consistent with the
requirements of Rule 12d2-2 \8\ under the Act and notes that the
proposal is similar to the voluntary withdrawal procedures for dually-
listed issuers on NYSE Arca, Inc.\9\ and index-linked notes on
NYSE.\10\ Replacing the board certification requirement with a letter
from an authorized executive officer may ease the burden on issuers of
securities who wish to transfer the listing to another national
securities exchange. Further, the Exchange notes that the requirement
of a letter from an authorized executive officer would ensure the
issuer properly made the delisting decision and complied with
applicable laws in effect in its jurisdiction, consistent with investor
protection and the public interest, and would not supersede the
requirements of the issuer's governing documents or its jurisdiction of
incorporation.
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\8\ 17 CFR 240.12d2-2.
\9\ NYSE Arca Equities Rule 5.4(b). See Securities Exchange Act
Release No. 54672 (October 30, 2006), 71 FR 65021 (November 6, 2006)
(SR-NYSEArca-2006-47).
\10\ Section 806.02 of the NYSE's Listed Company Manual. See
Securities Exchange Act Release No. 57041 (December 26, 2007), 73 FR
216 (January 2, 2008) (SR-NYSE-2007-99).
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The Exchange notes that the proposed alternative procedure for
withdrawal of listing would apply only to securities that would be
listed and traded on another national securities exchange following the
withdrawal of listing. Since the securities would list and trade on
another national securities exchange, transparent last sale information
will continue to be disseminated on the securities on an uninterrupted
basis. It would also ensure that the other protections for trading a
security on a national securities exchange remain, such as the periodic
reporting obligations under the Act.
Finally, the Exchange believes that the restatements of Rule 18 in
Company Guide Section 1010 and of Rule 12d2-2 under the Act are no
longer necessary and deletion of these restatements is consistent with
the requirements of the Act. When the Company Guide was published
separately from the rest of the Amex Rules, the restatements of
provisions not found in the Company Guide was helpful to readers. Now
that all of the Amex and Commission rules are equally available, and
immediately updated when changed, on the Internet, these restatements
are not only not necessary, but may create confusion in the event that
such rules are changed.
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.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
The Exchange did not receive any written comments on the proposed
rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding, or (ii) as to
which Amex consents, the Commission will:
(A) by order approve such proposed rule change; or
(B) institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-Amex-2008-65 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, Station Place, 100 F Street, NE., Washington,
DC 20549-1090.
All submissions should refer to File Number SR-Amex-2008-65. 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 (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 inspection and
copying in the Commission's Public Reference Room 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-
Amex-2008-65 and should be submitted on or before September 11, 2008.
[[Page 49511]]
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
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\11\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-19354 Filed 8-20-08; 8:45 am]
BILLING CODE 8010-01-P