

[Federal Register: March 22, 2006 (Volume 71, Number 55)]
[Notices]               
[Page 14562-14564]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22mr06-113]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53508; File No. SR-NSX-2005-09]

 
Self-Regulatory Organizations; National Stock Exchange; Notice of 
Filing of Proposed Rule Change To Amend Exchange Delisting Rules To 
Conform to Recent Amendments to Commission Rules Regarding Removal from 
Listing and Withdrawal from Registration

March 17, 2006.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on October 24, 2005, the National Stock Exchange SM 
(``NSX'' or ``Exchange'') filed with the Securities and Exchange 
Commission (``SEC'' or ``Commission'') the proposed rule change as 
described in Items I, II, and III below, which Items have been 
substantially 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)(1).
    \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 the text of Article IV, section 3 of 
the Exchange's By-Laws to allow its delisting rules to be set forth in 
sufficient detail to be in conformity with the recently adopted Rule 
12d2-2 under the Act.\3\
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    \3\ 17 CFR 240.12d2-2.
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    The text of the proposed rule change is below. Proposed new 
language is in italics; proposed deletions are in [brackets].
* * * * *

CODE OF REGULATIONS (BY-LAWS) OF NATIONAL STOCK EXCHANGE

* * * * *

ARTICLE IV.

Securities Listed on the Exchange
* * * * *
Delisting of Securities
    Section 3.
3.1. Suspension and/or Delisting by Exchange
    (a) No Change.
    (b) Whenever the Board determines that it no longer is appropriate 
for a security to continue to be traded on the Exchange, it may 
institute proceedings to delist such security by filing the appropriate 
application with the Commission (the ``Delisting Application'') to 
strike a class of securities from listing on the Exchange or from 
registration under Section 12(b) of the Exchange Act within a 
reasonable time after the Exchange makes the decision to suspend or 
delist a security. The Exchange shall provide: (1) notice to the issuer 
of the Exchange's decision to delist the issuer's securities; (2) an 
opportunity for the issuer to file an appeal [Any issuer or any other 
person aggrieved by such action may seek relief] pursuant to the 
Exchange Rules governing adverse actions; (3) public notice, no fewer 
than ten days before the delisting becomes effective, of the Exchange's 
final determination to delist the security via a press release and 
posting on the Exchange's website and (4) the prompt delivery of a copy 
of the Delisting Application to the issuer.
    (c) The securities of an issuer will be subject to suspension and/
or withdrawal from listing and registration as a listed issue if any of 
the following conditions are found to exist:
    (1) failure to comply with the listing standards and agreements; or
    (2) sustained loss so that financial condition becomes so impaired 
that it is questionable to the Exchange whether the company can 
continue operations and/or meet its obligations as they mature or
    (3) the entire class of securities has been called for redemption, 
maturity or retirement; appropriate notice thereof has been given; 
funds sufficient for the payment of all such securities have been 
deposited with an agency authorized to make such payments, and such 
funds have been made available to security holders; or
    (4) the entire class of security has been redeemed or paid at 
maturity or retirement; or
    (5) the instruments representing the securities comprising the 
entire class have come to evidence, by operation of law or otherwise, 
other securities in substitution therefore and represent no other 
right, except, if such be the fact, the right to receive an immediate 
cash payment (the right of dissenters to receive the appraised or fair 
value of their holdings shall not prevent the application of this 
provision); or
    (6) all rights pertaining to the entire class of the security have 
been extinguished; provided, however, that where such an event occurs 
as a result of an order of a court or other governmental authority, the 
orders shall be final, all applicable appeals periods shall have 
expired and no appeals shall be pending.
    Notwithstanding the foregoing, the Board may determine that the 
suspension or delisting of an issue is necessary for the protection of 
investors and the public interest.
3.2. Delisting by Issuer
    A security, which in the opinion of the Board is eligible for 
continued listing, may be removed from listing upon the request or 
application of the issuer provided that the issuer: (a) submits a 
certified copy of a resolution adopted by the board of directors of the 
issuer authorizing withdrawal from listing and registration; [and] (b) 
a statement setting forth in detail the reasons for the proposed 
withdrawal and the facts in support thereof; (c) certifies its 
compliance with the Exchange's rules for delisting and applicable state 
laws; (d) submits a written notification to the Exchange no fewer than 
ten days before the issuer files the appropriate form with the 
Commission of its intent to withdraw its securities from listing and/or 
registration on the Exchange setting forth a description of the 
security involved, together with a statement of all the material facts 
relating to the reasons for the withdrawal and another notice to the 
Exchange, immediately after its withdrawal from listing becomes 
effective pursuant to the rules of the Commission; and (e) 
contemporaneous with providing written notice to the Exchange, the 
issuer issues a public notice of its intent to delist, and/or withdraw 
its securities from Section 12(b) registration, via a press release 
and, if it has a publicly accessible web site, post such notice on such 
website.
    [The issuer may be required to submit the proposed withdrawal to 
the security holders for their vote at a meeting for which proxies are 
solicited provided the stock is not also listed on another national 
securities exchange registered under Section 6 of the Act having 
similar requirements or on a facility of a national securities 
association registered under Section 15A of the Act having similar 
requirements.]
* * * * *

[[Page 14563]]

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 NSX included statements 
concerning the purpose of and basis for 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
    The Commission recently adopted amendments to its Rule 12d2-2, Rule 
19d-1 and Form 25 under the Act and Rule 101 of Regulation S-T to 
streamline the procedures for delisting a security traded on a national 
securities exchange and/or deregistering the security under section 12 
of the Act.\4\ The Commission decided, in order to give time for the 
national securities exchanges to adopt rules to comply with the new 
requirements in Rule 12d2-2 under the Act, that the Commission's rule 
amendments will not become effective until April 24, 2006.
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    \4\ See Securities Exchange Act Release No. 52029 (July 14, 
2005), 70 FR 42456 (July 22, 2005) (``Adopting Release'').
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    The amendments to Rule 12d2-2 under the Act provide that an 
exchange may strike a class of securities from listing and/or withdraw 
the registration of such security under Section 12(b) by filing an 
application on Form 25. The delisting of the security will be effective 
ten days after Form 25 is filed with the Commission. The withdrawal 
from section 12(b) registration will take effect 90 days after the 
filing of the Form, or such shorter period as the Commission may 
determine. The Adopting Release also stated that the exchanges must, at 
a minimum, provide that (i) the exchange issues a notice to the issuer 
of the exchange's decision to delist its securities; (ii) the issuer is 
given the opportunity to appeal to the national securities exchange's 
board of directors or to a committee designated by the board; and (iii) 
the exchange provides public notice, no fewer than ten days before the 
delisting becomes effective, of the exchange's final determination to 
delist the security via a press release and posting on the exchange's 
Web site.
    The Exchange's current By-Law provisions respecting the delisting 
of securities are contained in Article IV, section 3. The current 
provision provides that the Exchange's Board of Directors, in the 
exercise of its business judgment, may determine to delist a security 
by instituting a proceeding to delist the security. The issuer or any 
party aggrieved by such decision may choose to seek relief from such 
action by following Chapter X of the Exchange Rules governing adverse 
actions.
    Although section 3.2(b) of Article IV provides procedural 
protection for the issuer of the security proposed to be delisted, the 
Exchange's By-Laws do not set forth the detailed steps required by the 
Adopting Release. While the Exchange's procedures contain the central 
elements--notice to the issuer and an opportunity for appeal--they are 
not spelled out in detail. Accordingly, this filing proposes to add the 
procedural requirements of: (i) Filing an application (Form 25) with 
the Commission; (ii) sending a notice to the issuer of the Exchange's 
decision to delist, which contains a notice of the appeals mechanism 
contained in Chapter X of the Rules and a copy of Form 25; and (iii) 
public notice of the determination to delist via a press release and 
the posting of such decision on the Exchange's Web site.
    Section 3.2(c) of Article IV provides some specific events which 
may cause the Exchange to delist securities of issuers that meet the 
criteria. While the Exchange may delist any security for the protection 
of the investing public and the public interest, this filing proposes 
to adopt the rationale set forth in Rule 12d2-2(a)(1)-(a)(4) for 
delisting.
    This filing also proposes to amend the criteria the Exchange would 
employ for issuers that desire to delist their security from the 
Exchange. This proposal would adopt certain provisions contained in 
Rule 12d2-2(c). Specifically, it would add provisions that: (i) The 
issuer must certify that it is in compliance with the Exchange's rules 
for delisting and applicable state law (in conformity with Rule 12d2-
2(c)(2)(i)); (ii) the issuer must submit written notice (that is in 
conformity with the requirements of Rule 12d2-2(c)(2)(ii)) to the 
Exchange no fewer than ten days before the issuer files its application 
to delist with the Commission and another notice when such application 
becomes effective (in order to provide the Exchange with adequate 
notice of the effective date); and (iii) like the Exchange, the issuer 
is required to post notice of its decision to delist and make public 
disclosure of the same (in conformity with Rule 12d2-2(c)(iii)).
    Finally, the proposal would eliminate the need for the issuer to 
submit the proposed withdrawal to the security holders for their vote 
in a meeting for which proxies are submitted. This requirement is no 
longer deemed by the Exchange to be necessary for the protection of 
shareholders as the procedural requirements of Rule 12d2-2(c) fulfills 
that need.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of section 6(b) of the Act,\5\ in general, and 
section 6(b)(5),\6\ in particular, in that the proposed rule change is 
designed to promote just and equitable principles of trade, to prevent 
fraudulent and manipulative acts, to remove impediments to and perfect 
the mechanisms 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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    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The proposed rule change does not 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

    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 Exchange consents, the Commission shall:
    (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:

[[Page 14564]]

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 No. SR-NSX-2005-09 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-NSX-2005-09. 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-NSX-2005-09 and should be submitted on or before April 
12, 2006.
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    \7\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\7\
Nancy M. Morris,
Secretary.
[FR Doc. 06-2793 Filed 3-17-06; 4:16 pm]

BILLING CODE 8010-01-P
