

[Federal Register: November 6, 2006 (Volume 71, Number 214)]
[Notices]               
[Page 65021-65023]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06no06-71]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54672; File No. SR-NYSEArca-2006-47]

 
Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving 
Proposed Rule Change and Amendment No. 1 Thereto and Notice of Filing 
and Order Granting Accelerated Approval to Amendment No. 2 to Modify 
the Voluntary Withdrawal Procedures of Securities From Listing on the 
Exchange and, for Dually-Listed Issuers Voluntarily Withdrawing Listed 
Securities on the Exchange, To Eliminate the Requirement To Submit 
Resolutions by Their Board of Directors

October 30, 2006.

I. Introduction

    On August 4, 2006, NYSE Arca, Inc. (``Exchange'') filed with the 
Securities and Exchange Commission (``Commission''), pursuant to 
Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'') \1\ 
and Rule 19b-4 thereunder,\2\ a proposed rule change to amend Rule 
5.4(b) of NYSE Arca Equities, Inc. (``NYSE Arca Equities''), a wholly-
owned subsidiary of the Exchange. The Exchange amended the proposal on 
August 17, 2006. The proposed rule change, as amended, was published 
for comment in the Federal Register on August 29, 2006.\3\ The 
Commission received no comments on the proposal. On October 17, 2006, 
the Exchange filed Amendment No. 2 to the proposal.\4\ In Amendment No. 
2, the Exchange amended the proposed rule text to reflect The Nasdaq 
Stock Market's change in status as a national securities exchange,\5\ 
and to add that only an authorized executive officer may submit a 
delisting notice to the Exchange in the case of dually-listed issuers 
(as defined below). This order approves the proposed rule change, as 
amended by Amendment Nos. 1 and 2. The Commission has accelerated 
approval of Amendment No. 2 and is also providing notice and soliciting 
comments on Amendment No. 2 to the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 54348 (August 22, 
2006), 71 FR 51264.
    \4\ See Partial Amendment dated October 17, 2006 (`` Amendment 
No. 2'').
    \5\ See Securities Exchange Act Release Nos. 53128 (January 13, 
2006), 71 FR 3550 (January 23, 2006); 54240 (July 31, 2006), 71 FR 
45246 (August 8, 2006); and 54241 (July 31, 2006), 71 FR 45359 
(August 8, 2006).
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II. Description of the Proposal

    The Exchange proposes to amend NYSE Arca Equities Rule 5.4(b) to 
modify the voluntary withdrawal procedures of securities from listing 
on NYSE Arca, L.L.C. (``NYSE Arca Marketplace''), the equities trading 
facility of NYSE Arca Equities. For an issuer who wishes to voluntarily 
withdraw securities listed on NYSE Arca Marketplace, the Exchange 
proposes to eliminate the requirement that such issuer submit a letter 
from an authorized officer of the issuer, providing the specific 
reasons cited by its board of directors for the proposed withdrawal.\6\ 
Further, the Exchange proposes to eliminate the requirement that such 
issuer, under special

[[Page 65022]]

circumstances, submit the proposed withdrawal to its shareholders for 
their vote at a meeting for which proxies are solicited, provided the 
security is not also listed on another exchange with similar 
requirements.
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    \6\ Although the provision requiring submission of a letter 
stating the board of director's specific reasons for delisting would 
be eliminated from NYSE Arca Equities rules, Rule 12d2-2(c)(2)(ii) 
under the Act has a similar provision that requires issuers to 
``provide written notice to the national securities exchange of its 
determination to withdraw the class of securities from listing and/
or registration on such exchange. Such written notice must set forth 
a description of the security involved, together with a statement of 
all material facts relating to the reasons for withdrawal from 
listing and/or registration.'' 17 CFR 240.12d2-2(c)(2)(ii).
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    In place of these requirements, the Exchange proposes that an 
issuer may voluntary delist a security from the Exchange after the 
issuer's 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 Act.\7\ The issuer must 
thereafter file a Form 25 with the Commission to withdraw the security 
from listing on the Exchange and from registration under the Act. 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 Commission. In 
addition, if an issuer delists a class of stock from the Exchange and 
does not delist other classes of listed securities, the Exchange may 
consider delisting one or more of such other classes.
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    \7\ 17 CFR 240.12d2-2(c).
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    Finally, for an issuer whose securities are listed on both the 
Exchange and another national securities exchange (``dually-listed 
issuer''), the Exchange proposes to eliminate the requirement that such 
issuer provide to the Exchange a certified copy of the resolutions of 
the issuer's board of directors authorizing the withdrawal from listing 
on the Exchange. Instead, the Exchange proposes to require the 
submission of a letter signed by an authorized executive officer of the 
issuer setting forth the reason for the proposed withdrawal.

III. Discussion and Commission Findings

    The Commission finds that the proposed rule change, as amended, is 
consistent with the requirements of the Act and the rules and 
regulations applicable to a national securities exchange, and in 
particular, with the requirements of Section 6(b) of the Act.\8\ 
Specifically, the Commission finds that the proposed rule change, as 
amended, is consistent with Section 6(b)(5) of the Act \9\ 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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    \8\ 15 U.S.C. 78f(b). In approving the proposed rule change, as 
amended, the Commission considered the proposed rule's impact on 
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
    \9\ 15 U.S.C. 78f(b)(5).
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    The Commission believes the Exchange's proposal to modify voluntary 
withdrawal procedures is consistent with the requirements of the Act 
and does not raise any significant regulatory issues. The Exchange 
proposes to amend the voluntary delisting process by requiring that an 
issuer may voluntary delist a security from the Exchange after the 
issuer's 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 Act.\10\ The issuer must 
thereafter file a Form 25 with the Commission to withdraw the security 
from listing on the Exchange and from registration under the Act. 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 Commission. 
Further, the Exchange may consider delisting one or more other classes 
of securities if an issuer delists a class of security and does not 
delist other classes of listed securities. The Commission notes that 
the proposed voluntary withdrawal procedures are consistent with the 
requirements of Rule 12d2-2 under the Act \11\ and are virtually 
identical to the voluntary withdrawal procedures of the New York Stock 
Exchange LLC (``NYSE'').\12\ Further, some of the provisions to be 
deleted are already imposed on issuers by Rule 12d2-2 under the 
Act.\13\
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    \10\ 17 CFR 240.12d2-2(c).
    \11\ 17 CFR 240.12d2-2.
    \12\ See NYSE Listed Company Manual Section 806.02. NYSE and the 
Exchange are both owned by the NYSE Group, Inc. as a result of a 
merger between the Archipelago Holdings, Inc. and the New York Stock 
Exchange, Inc. on March 7, 2006.
    \13\ 17 CFR 240.12d2-2(c)(2)(ii).
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    Further, the Exchange proposes to eliminate the requirement that a 
dually-listed issuer provide to the Exchange a certified copy of the 
resolutions of the issuer's board of directors authorizing the 
withdrawal from listing on the Exchange. The proposed rule requires 
that each dually-listed issuer provide a letter signed by an authorized 
executive officer of the issuer setting forth the reasons for the 
proposed withdrawal.\14\ Dually-listed issuers also must still comply 
with all the other requirements of NYSE Arca Equities Rule 5.4(b) and 
Rule 12d2-2 under the Act,\15\ which specifically requires, among other 
things, that issuers comply with all applicable laws in effect in the 
state in which they are incorporated.
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    \14\ See proposed NYSE Arca Equities Rule 5.4(b); see also supra 
note 6.
    \15\ See 17 CFR 240.12d2-2(c)(2).
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    The elimination of the board certification requirement may ease the 
burden on dually-listed issuers who wish to voluntarily withdraw 
securities from listing on the Exchange. Moreover, the security of a 
dually-listed issuer would continue to be listed and traded on a 
registered national securities exchange. As noted by the Exchange, this 
should ensure that transparent last sale information will continue to 
be disseminated on the delisted security on an uninterrupted basis. It 
would also ensure the other protections for trading a security on a 
national securities exchange remain, such as the periodic reporting 
obligations under the Act. Based on the above reasons, the Commission 
finds that the proposal is consistent with the requirements of the Act.

IV. Accelerated Approval of Amendment No. 2

    Pursuant to Section 19(b)(2) of the Act,\16\ the Commission may not 
approve any proposed rule change, or amendment thereto, prior to the 
30th day after the date of publication of notice of the filing thereof, 
unless the Commission finds good cause for so doing and publishes its 
reasons for so finding.
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    \16\ 15 U.S.C. 78s(b)(2).
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    In Amendment No. 2, the Exchange proposed to amend the proposed 
rules to reflect the change in status of the Nasdaq Stock Market to a 
national securities exchange, and to add that only an authorized 
executive officer may submit a delisting notice to the Exchange in the 
case of dually-listed issuers. The Commission finds good cause to 
accelerate approval of these changes prior to the 30th day after 
publication in the Federal Register. The revisions made to the proposal 
in Amendment No. 2 accurately reflect the Nasdaq Stock Market's status 
as a national securities exchange, and clarify that only an authorized 
executive officer of a dually-listed issuer may submit a delisting 
notice to the Exchange. The Commission believes that accelerating 
approval of Amendment No. 2 is appropriate because these revisions do 
not raise any new regulatory issues and make the proposal more accurate 
and clearer.

[[Page 65023]]

V. Solicitation of Comments on Amendment No. 2

    Interested persons are invited to submit written data, views and 
arguments concerning Amendment No. 2, including whether Amendment No. 2 
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 
November 27, 2006.

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\17\ that the proposed rule change (SR-NYSEArca-2006-47), as 
amended, is hereby approved, and that Amendment No. 2 thereto is 
approved on an accelerated basis.
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    \17\ 15 U.S.C. 78s(b)(2).
    \18\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\18\
Nancy M. Morris,
Secretary.
[FR Doc. E6-18631 Filed 11-3-06; 8:45 am]

BILLING CODE 8011-01-P
