

[Federal Register: August 29, 2006 (Volume 71, Number 167)]
[Notices]               
[Page 51264-51266]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29au06-99]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54348; File No. SR-NYSEArca-2006-47]

 
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Amendment No. 1 Thereto of Proposed Rule Change Relating to 
Voluntary Withdrawal Procedures by Listed Issuers

 August 22, 2006.
    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 August 4, 2006, NYSE Arca, Inc. (``NYSE Arca'' 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 the Exchange. On August 17, 2006, the 
Exchange filed Amendment No. 1 to the proposed rule change.\3\ 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\ In Amendment No. 1, the Exchange replaced Exhibit 5 with the 
correct rule text and corrected a typographical error in the heading 
of Exhibit 1.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    NYSE Arca, through its wholly-owned subsidiary NYSE Arca Equities, 
Inc. (``NYSE Arca Equities'' or ``Corporation''), proposes to amend 
NYSE Arca Equities Rule 5.4(b) relating to the voluntary withdrawal by 
issuers of their securities listed on NYSE Arca, L.L.C. (also referred 
to as the ``NYSE Arca Marketplace''), the equities trading facility of 
NYSE Arca Equities, including with respect to dually-listed issuers. 
Below is the text of the proposed rule change, as amended. Proposed new 
language is italics; proposed deletions are in brackets.
* * * * *

Rule 5 Listings

* * * * *
[Issuer Proposing to Withdraw]
Rule 5.4(b). Issuer Proposing to Withdraw
    [An issuer proposing to withdraw a security from listing on the 
Corporation shall submit to the Corporation a certified copy of a 
resolution adopted by the board of directors of the issuer authorizing 
withdrawal from listing and registrations, a letter from an authorized 
officer of the issuer providing the specific reasons cited by the board 
of directors of the issuer for the proposed withdrawal, and a copy of 
the Form 25 that the issuer has filed with the Securities and Exchange 
Commission in accordance with Rule 12d2-2 promulgated under Section 
12(d) of the Securities Exchange Act of 1934, as amended, no later than 
the date of such filing. The issuer may be required, under special 
circumstances, to submit the proposed withdrawal to the shareholders 
for their vote at a meeting

[[Page 51265]]

for which proxies are solicited provided the security is not also 
listed on another exchange having similar requirements.]
    An issuer may delist a security from the Exchange after its board 
approves the action and the issuer (i) furnishes the Exchange with a 
copy of the Board resolution authorizing such delisting certified by 
the secretary of the issuer and (ii) complies with all of the 
requirements of Rule 12d2-2(c) under the Securities Exchange Act of 
1934. The issuer must thereafter file a Form 25 with the Securities and 
Exchange Commission to withdraw the security from listing on the 
Exchange and from registration under the Securities Exchange Act of 
1934. In addition, the issuer must provide a copy of the Form 25 to the 
Exchange simultaneously with the filing of such Form 25 with the 
Securities and Exchange Commission. If an issuer delists a class of 
stock from the Exchange pursuant to this Rule, but does not delist 
other classes of listed securities, the Exchange will give 
consideration to delisting one or more of such other classes.
    If, however, an issuer proposing to withdraw from listing is also 
listed on a national securities exchange or the Nasdaq Stock Market 
(including the Nasdaq Capital Market or any successor thereto), it need 
not submit the board resolution required by Rule 5.4(b)(i) above, but, 
in lieu thereof, must provide a letter signed by an executive officer 
of the issuer setting forth the reasons for the proposed withdrawal. 
Such issuers must still otherwise comply with the other requirements of 
this Rule and Rule 12d2-2(c) under the Securities Exchange Act of 1934.
    The Exchange [Corporation], upon receiving written notification of 
the issuer's intent to withdraw its securities from listing and 
registration, shall post notice of such intent on the Exchange's 
website by the next business day and until the delisting becomes 
effective. An issuer seeking to voluntarily apply to withdraw a class 
of securities from listing on NYSE Arca pursuant to this paragraph that 
has received notice from NYSE Arca, pursuant to Rule 5.3, Rule 5.5 or 
otherwise, that it is below NYSE Arca's continued listing policies and 
standards, or that is aware that it is below such continued listing 
policies and standards notwithstanding that it has not received such 
notice from NYSE Arca, must disclose that it is no longer eligible for 
continued listing (identifying the specific continued listing policies 
and standards with which it does not comply) in: (i) Its statement of 
all material facts relating to the reasons for withdrawal from listing 
provided to NYSE Arca along with written notice of its determination to 
withdraw from listing required by Rule 12d2-2(c)(2)(ii) under the 
Exchange Act; and (ii) its public press release and Web site notice 
required by Rule 12d2-2(c)(2)(iii) under the Exchange Act.
* * * * *

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
    On March 7, 2006, Archipelago Holdings, Inc. and the New York Stock 
Exchange, Inc. completed the merger creating the NYSE Group, Inc. 
(``NYSE Group''). The NYSE Group is a holding company that operates, 
among other things, two securities exchanges: New York Stock Exchange 
LLC (``NYSE'') and NYSE Arca Marketplace.\4\ In connection with the 
merger, NYSE Arca Marketplace examined its listings program, and 
determined to revitalize and refocus its primary listings program. In 
particular, with this filing, NYSE Arca proposes to: (1) Substantially 
align its voluntary withdrawal requirements with those of the NYSE,\5\ 
and (2) eliminate--for all issuers listed on NYSE Arca, on the one 
hand, and either a national securities exchange or the Nasdaq Stock 
Market (including the Nasdaq Capital Market or any successor thereto), 
on the other hand (which will be referred to as ``dually-listed 
issuers'')--the requirement set forth in the current NYSE Arca Equities 
Rule 5.4(b) that issuers which propose to withdraw a security from 
listing shall submit a certified copy of a resolution adopted by the 
board of directors authorizing withdrawal from listing and 
registration. Instead, a dually-listed issuer wishing to voluntarily 
withdraw will be required to submit a letter from an executive officer 
of the issuer setting forth the reasons for the proposed withdrawal.
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    \4\ The Commission notes that NYSE Group operates two national 
securities exchanges: NYSE and NYSE Arca. NYSE Arca Marketplace is a 
facility of NYSE Arca Equities.
    \5\ For example, current Section 806.02 of the NYSE Listed 
Company Manual states that if an issuer delists a class of stock 
from NYSE but does not delist other classes of securities, NYSE will 
give consideration to the delisting of one or more of such other 
classes. Proposed NYSE Arca Equities Rule 5.4 will provide the 
Exchange with similar flexibility.
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    The elimination of the board resolution requirement applies to 
dually-listed issuers only; the board resolution requirement will 
continue to apply to all issuers listed exclusively on NYSE Arca. 
Furthermore, all other requirements of NYSE Arca Equities Rule 5.4(b) 
will continue to apply to dually-listed issuers. The Exchange also 
notes that dually-listed issuers will still be required to comply with 
any applicable state laws.
    Additionally, based on informal discussions with its dually-listed 
issuers, NYSE Arca believes that removing the board resolution 
requirement will ease the process for any dually-listed issuer who 
wishes to voluntarily withdraw from NYSE Arca. Furthermore, the 
Exchange believes that the removal of this requirement would not create 
or raise any new or significant regulatory issues. While a dually-
listed issuer will not be listed and traded on NYSE Arca following its 
withdrawal from the NYSE Arca Marketplace, the issuer will continue to 
be listed and traded on either a registered securities exchange or the 
Nasdaq Stock Market (or any successor thereto). Consequently, 
transparent last sale reporting information regarding trading in the 
issuer's securities will continue to be disseminated, and the continued 
listing and trading of such securities will remain subject to the same 
or substantially similar protections and requirements to which such 
listing and trading is currently subject on NYSE Arca. Moreover, in 
lieu of the board resolution requirement, an executive officer of the 
dually-listed issuer will be required to present a detailed rationale 
for the proposed withdrawal. In contrast, those issuers exclusively 
listed on NYSE Arca that wish to delist will continue to be required to 
comply with the board resolution requirement.
2. Statutory Basis
    The Exchange believes that the proposed rule change, as amended, is 
consistent with Section 6(b)(5) of the Act \6\ because it is designed 
to prevent fraudulent and manipulative acts and practices, to promote 
just and equitable principles of trade, to foster cooperation

[[Page 51266]]

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.
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    \6\ 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 has neither solicited nor received written comments on 
the proposed rule change, as amended.

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, 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, 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-NYSEArca-2006-47 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEArca-2006-47. 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-NYSEArca-2006-47 and should be submitted on or before 
September 19, 2006.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\7\
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    \7\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
 [FR Doc. E6-14275 Filed 8-28-06; 8:45 am]

BILLING CODE 8010-01-P
