

[Federal Register: February 16, 2006 (Volume 71, Number 32)]
[Notices]               
[Page 8319-8321]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16fe06-93]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53264; File No. SR-Amex-2005-117]

 
Self-Regulatory Organizations; American Stock Exchange LLC; 
Notice of Filing of Proposed Rule Change and Amendment Nos. 1 and 2 
Thereto Relating to Amendments to the Amex Membership Corporation's 
Certificate of Incorporation

February 9, 2006.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934

[[Page 8320]]

(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on November 23, 2005, the American Stock Exchange LLC (``Amex'' or 
``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 Amex. On January 24, 
2006, Amex filed Amendment No. 1 to the proposed rule change.\3\ On 
February 1, 2006, Amex filed Amendment No. 2 to the proposed rule 
change.\4\ The Commission is publishing this notice to solicit comments 
on the proposed rule change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 replaced the original filing in its 
entirety.
    \4\ See Partial Amendment No. 2.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange submits for Commission approval amendments to the Amex 
Membership Corporation's (``AMC'') Restated Certificate of 
Incorporation (``AMC Certificate''). In addition, the Amex proposes to 
amend Articles II, IV, and XIII of its Constitution to revise various 
references to the AMC Certificate.
    The text of the proposed rule change is available on the Amex's Web 
site (http://www.amex.com), at the Amex's Office of the Secretary, and 

at the Commission's Public Reference Room.

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

    In its filing with the Commission, the Amex included statements 
concerning the purpose of, and basis for, the proposed rule change, as 
amended, and discussed any comments it received on the proposed rule 
change, as amended. The text of these statements may be examined at the 
places specified in Item IV 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
    AMC proposes to amend the AMC Certificate to: (i) Permit the 
transfer or lease of trading rights among AMC members and member 
organizations apart from the memberships in respect of which they were 
made available; and (ii) eliminate the existing requirement that AMC 
submit to a vote of its members the authorization of new forms of 
trading rights. As part of the sale of the Amex to AMC, the Amex 
submitted and the Commission approved a proposal requiring that 
amendments to the AMC Certificate and By-laws be submitted to the Amex 
Board of Governors for determination of whether the amendments 
constituted a ``rule of an exchange'' as that term is defined in the 
Act.\5\ If the Amex Board determines that the amendments to the AMC 
Certificate or Bylaws are ``rules of the exchange'', then such 
amendments must be filed with and approved by the Commission pursuant 
to Section 19(b) of the Act and Rule 19b-4 thereunder before they may 
become effective. At its meeting on July 20, 2005, the Amex Board 
reviewed the proposed amendments to the AMC Certificate and determined 
that they constituted a rule of the exchange since, as more 
specifically described below, the amendments involved whether certain 
actions by Amex need the consent of the holders of AMC memberships and 
involve the consents necessary for the issuance of trading rights on 
the Amex.
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    \5\ See Securities Exchange Act Release No. 50927 (December 23, 
2004) 69 FR 78486 (December 30, 2004) (approving SR-Amex-2004-50). 
Section 3(a)(27) of the Act defines the rules of an exchange to be 
the constitution, articles of incorporation, by-laws, and rules, or 
instruments corresponding to the foregoing, of an exchange, and such 
stated policies, practices, or interpretations of such exchange as 
the Commission, by rule, may determine to be necessary or 
appropriate in the public interest or for the protection of 
investors to be deemed to be rules of such exchange.
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    Currently, Section 6 of the AMC Certificate provides that AMC make 
available one Regular Trading Right for each Regular Member and one 
Options Principal Trading Right for each Options Principal Member and 
that such trading rights shall not be transferred or leased apart from 
those memberships. In addition, Section 7(a) of the AMC Certificate 
provides that the following actions need the consent of the holders of 
its memberships: (i) The sale, issuance, transfer or other disposition 
of ``equity securities'' as that term is defined in Section 7(a); and 
(ii) the authorization, grant or issuance of trading rights other than 
regular trading rights, options principal trading rights or the Limited 
Trading Permits. The AMC Board at its meeting on July 11, 2005 voted to 
approve and recommend to its members that the AMC Certificate be 
amended to: (i) Eliminate the reference in Section 6 to one trading 
right, thus allowing the issuance of more than one right to Regular 
Members and Options Principal Members; (ii) eliminate the prohibition 
in Section 6 on such trading rights being transferred or leased apart 
from the Regular and Options Principal Memberships; and (iii) eliminate 
the requirement that a vote of the membership is required for the 
authorization or issuance of trading rights as described in Section 
7(a)(ii). Instead, the AMC membership's consent will be required for 
any action taken by the Amex to increase the number of memberships 
issued by AMC. Membership consent will still be required for the sale, 
issuance, transfer or other disposition of equity securities as 
provided in Section 7(a)(i). It should also be noted that Amex will 
still need to get AMC Board approval for the issuance of new trading 
rights. The AMC Board can, if it chooses, seek the consent of its 
membership for any proposal calling for the issuance of new trading 
rights.
    The issue of transferable trading rights arose recently in regard 
to a proposal to allow specialists and registered options traders to 
enter quotes in options from remote locations.\6\ To participate in 
remote quoting, specialists and registered options traders will be 
issued rights, which will attach to the individual eligible to receive 
them and will not attach to a sale of the membership. It is proposed 
that with the permission of the Amex these rights will be separately 
transferable by the specialist or registered options trader eligible to 
receive them. Therefore, while the rights will only be transferable to 
other members or member organizations, they will trade separately from 
the membership and will not increase the number of memberships issued 
by AMC. The AMC Board believes that the issuance of these types of 
rights is appropriate and the rights should be transferable or able to 
be leased apart from the membership. Additionally, the AMC Board does 
not believe that the issuance of these types of rights was contemplated 
to be included as an action requiring consent pursuant to Section 7(a) 
of the AMC Certificate. Therefore, the AMC Board is proposing to amend 
the AMC Certificate to: (i) Provide that trading rights can be 
transferred or leased apart from the membership; and (ii) revise the 
requirement so that consent is not required for the issuance of trading 
rights that do not include an increase in the number of memberships 
issued by AMC. The AMC Board determined to make this change to the AMC 
Certificate in order to give flexibility to the Amex

[[Page 8321]]

to take prompt action to implement new forms of trading rights designed 
to enhance Amex's position in an increasingly competitive and fast 
moving marketplace. At a special meeting of the Regular and Options 
Principal members held on September 28, 2005, the AMC members approved 
the amendments to the AMC Certificate. The AMC Board also approved non-
substantive changes to the text of the AMC Certificate.
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    \6\ See Securities Exchange Act Release No. 53220 (February 3, 
2006) (notice for SR-Amex-2005-100).
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    In addition, management proposes to amend the following sections of 
the Amex Constitution: Article II, Section 8; Article IV, Section 1; 
and Article XIII, Sections 1 and 3 to replace references to the AMC's 
``Second Restated Certificate of Incorporation'' with ``Restated 
Certificate of Incorporation''. Further, Amex proposes to delete the 
following text from Article II, Section 8 of the Amex Constitution: 
``as in effect on the date hereof'', which is used when referring to 
the AMC Certificate and By-laws, since it is unnecessary and confusing. 
The Commission notes that Amex also proposes other non-substantive 
changes to the proposed rule text.\7\
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    \7\ Telephone conversation between Claire McGrath, Senior Vice 
President & General Counsel, Amex, and David Michehl, Attorney, 
Division of Market Regulation, Commission, on January 31, 2006 
confirming the intention of the Amex to make non-substantive changes 
to the introduction and Sections 3, 6, and 19 of the AMC 
Certificate.
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2. Statutory Basis
    The Exchange believes that the proposed rule change, as amended, is 
consistent with the provisions of Section 6(b) of the Act,\8\ in 
general, and with Section 6(b)(5) of the Act,\9\ in particular, in that 
it is designed to prevent fraudulent and manipulative acts and 
practices, to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in 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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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change, as 
amended, 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 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 the self-regulatory organization consents, the Commission will:
    A. By order approve such proposed rule change, as amended; or
    B. institute proceedings to determine whether the proposed rule 
change, as amended, 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, 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-Amex-2005-117 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, Station Place, 100 F 
Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-Amex-2005-117. 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-Amex-2005-117 and should be submitted on or before March 
9, 2006.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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J. Lynn Taylor,
Assistant Secretary.
 [FR Doc. E6-2200 Filed 2-15-06; 8:45 am]

BILLING CODE 8010-01-P
