

[Federal Register: October 14, 2005 (Volume 70, Number 198)]
[Notices]               
[Page 60118-60119]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14oc05-78]                         

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-52569; File No. SR-NYSE-2005-61]

 
Self-Regulatory Organizations; New York Stock Exchange, Inc.; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change 
and Amendment No. 2 Thereto Relating to an Interpretation of Exchange 
Rule 452

October 6, 2005.
    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 September 2, 2005, the New York Stock Exchange, Inc. (``Exchange'') 
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 filed Amendment 
Nos. 1 \3\ and 2 \4\ to the proposed rule change on September 20, 2005 
and September 28, 2005, respectively. The Commission is publishing this 
notice to solicit comments on the proposed rule change, as amended, 
from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 was intended to replace and supersede the 
filing in its entirety. However, the Exchange withdrew Amendment No. 
1 on September 28, 2005 since the Exchange inadvertently submitted 
Amendment No. 1 incorrectly under to Rule 19b-4(f)(6), rather than 
Rule 19b-4(f)(1).
    \4\ In Amendment No. 2, the Exchange made non-substantive 
clarifying changes to reference Sections 402.06 and 402.08 of the 
Exchange's Listed Company Manual, in the Purpose section of its 
filing.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend an Exchange interpretation of 
Exchange Rule 452 (Giving Proxies by Member Organizations).\5\
---------------------------------------------------------------------------

    \5\ The Commission notes that the proposed rule change, as 
amended, does not amend the text of Exchange Rule 452 or its 
Supplementary Material.
---------------------------------------------------------------------------

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
item IV below. The Exchange has prepared summaries, set forth in 
Sections A, B, and C below, of the most significant aspects of such 
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Exchange Rule 452 (which is referenced in Sections 402.06 and 
402.08 of the Listed Company Manual) provides that a member 
organization may give a proxy to vote shares registered in its name, 
notwithstanding the failure of the beneficial owner to instruct the 
firm how to vote, provided, among other things, that the proposal being 
voted on does not involve a matter which ``may affect substantially the 
rights or privileges of such stock.'' By way of example, Supplementary 
Material .11 to Rule 452 (which is also referenced in Section 402.08 of 
the Listed Company Manual) lists 18 actions in respect of which member 
organizations may not vote uninstructed shares. In addition to those 18 
specific actions, the Exchange has interpreted Rule 452 to preclude 
member organizations from voting without instructions in certain other 
situations, including any material amendment to the investment advisory 
contract with an investment company.\6\
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 30697 (May 13, 
1992), 57 FR 21434 (May 20, 1992) (SR-NYSE-92-05).
---------------------------------------------------------------------------

    For many years, the Exchange interpreted this provision to permit 
member organizations to vote uninstructed shares on the authorization 
of new investment company investment advisory contracts, where the 
change in identity of the investment adviser was the only change being 
made to the substantive terms of the contract.
    The Exchange, following discussions with staff from the 
Commission's Division of Investment Management, has determined that any 
proposal to obtain shareholder approval of an investment company's 
investment advisory contract with a new investment adviser, which 
approval is required by the Investment Company Act of 1940, as amended 
(``1940 Act''),\7\ and the rules thereunder, will be deemed to be a 
``matter which may affect substantially the rights or privileges of 
such stock'' for purposes of Exchange Rule 452 so that a member 
organization may not give a proxy to vote shares registered in its name 
absent instruction from the beneficial holder of the shares. As a 
result, for example, a member organization may not give a proxy to vote 
shares registered in its

[[Page 60119]]

name, absent instruction from the beneficial holder of the shares, on 
any proposal to obtain shareholder approval required by the 1940 Act of 
an investment advisory contract between an investment company and a new 
investment adviser due to an assignment of the investment company's 
investment advisory contract, including an assignment caused by a 
change in control of the investment adviser that is party to the 
assigned contract.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 80a et seq.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the requirements under Section 6(b)(5) of the Act \8\ that an 
exchange have rules that are designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, to remove impediments to, and perfect the 
mechanism of a free and open market and a national market system and, 
in general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    The Exchange has neither solicited nor received written comments on 
the proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A) of the Act \9\ and paragraph (f)(1) of Rule 19b-4 
thereunder \10\ as constituting a stated policy, practice, or 
interpretation with respect to the meaning, administration, or 
enforcement of an existing Exchange rule. At any time within 60 days of 
the filing of the proposed rule change, the Commission may summarily 
abrogate such rule change if it appears to the Commission that such 
action is necessary or appropriate in the public interest, for the 
protection of investors, or otherwise in furtherance of the purposes of 
the Act.\11\
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(1).
    \11\ The effective date of the original proposed rule change is 
September 2, 2005 and the effective date of Amendment No. 2 is 
September 28, 2005. For purposes of calculating the 60-day period 
within which the Commission may summarily abrogate the proposed rule 
change, as amended, under Section 19(b)(3)(C) of the Act, the 
Commission considers the period to commence on September 28, 2005, 
the date on which the Exchange submitted Amendment No. 2. See 15 
U.S.C. 78s(b)(3)(C).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change, as amended, 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-NYSE-2005-61 on the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-9303. All submissions should refer to File Number 
SR-NYSE-2005-61. 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. 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 available publicly. All 
submissions should refer to File Number SR-NYSE-2005-61 and should be 
submitted on or before November 4, 2005.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\12\
---------------------------------------------------------------------------

    \12\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Lynn Taylor,
Assistant Secretary.
[FR Doc. E5-5646 Filed 10-13-05; 8:45 am]

BILLING CODE 8010-01-P
