
[Federal Register: June 20, 2008 (Volume 73, Number 120)]
[Notices]               
[Page 35184-35185]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn08-106]                         


[[Page 35184]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57958; File No. SR-NYSE Arca-2008-56]

 
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change as Modified by Amendment No. 1 To Amend the 
Pilot Program for Initial and Continued Listing Standards, To Provide 
That Currently Traded Issuers Will Be Required To Meet Each of the $5 
Closing Price Requirement and the $150 Million Market Value of Listed 
Securities Requirement on the Basis of a 90 Trading Day Average of the 
Closing Price of the Company's Common Stock Prior To Applying for 
Listing

June 12, 2008.
    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 May 28, 2008, 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 substantially prepared by the Exchange. On June 5, 
2008, the Exchange filed Amendment No. 1. The Commission is publishing 
this notice and order to solicit comments on the proposal, as modified 
by Amendment No. 1, 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

    NYSE Arca, through its wholly-owned subsidiary NYSE Arca Equities, 
Inc. (``NYSE Arca Equities''), proposes to amend the initial listing 
standard for common stock set forth in NYSE Arca Equities Rule 5.2(c) 
to provide that currently traded issuers will be required to meet each 
of the $5 closing price requirement and the $150 million market value 
of listed securities requirement on the basis of a 90 trading day 
average of the closing price of the company's stock prior to applying 
for listing. In addition, a company will not qualify for listing unless 
(i) the closing price of its common stock is at least $1 in each day of 
the 90 trading day period and (ii) the company's closing price exceeds 
$5 and its market value exceeds $150 market value at the time it 
applies for listing.

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 III 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 NYSE Arca Equities initial listing standards for equity 
securities are approved on a pilot basis (``Pilot Program'').\3\ Under 
the Pilot Program, Rule 5.2(c) requires that issuers wishing to list 
their common stock must have a $5 stock price and a market value of 
listed securities of $150 million at the time they apply to list. In 
the case of issuers whose stock is publicly traded immediately prior to 
listing on the Exchange, the rule currently requires that the issuer 
must maintain a closing price for its stock of $5 and a market value of 
listed securities of $150 million for 90 consecutive trading days prior 
to applying for listing. The Exchange proposes to amend these 
requirements as part of the Pilot Program, to provide that such issuers 
must demonstrate a $5 stock price and $150 million in market value of 
listed securities on the basis of a 90 trading day average of the 
closing price of the common stock prior to applying for listing. In 
addition, a company will not qualify for listing unless (i) the closing 
price of its common stock is at least $1 in each day of the 90 trading 
day period and (ii) the company's closing price exceeds $5 and its 
market value exceeds $150 market value at the time it applies for 
listing.
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    \3\ Rule 5.2(c) exists in its current form pursuant to a Pilot 
Program. The Commission initially approved the Pilot Program for six 
months, until May 29, 2007. See Securities Exchange Act Release No. 
54796 (November 20, 2006), 71 FR 69166 (November 29, 2006) (SR-
NYSEArca-2006-85). The Pilot Program was subsequently extended for 
an additional six months, until November 30, 2007. See Securities 
Exchange Act Release No. 55838 (May 31, 2007), 72 FR 31642 (June 7, 
2007) (SR-NYSEArca-2007-51). The Pilot Program was extended for an 
additional six months, until May 31, 2008. See Securities Exchange 
Act Release No. 56885 (December 3, 2007), 72 FR 69272 (December 7, 
2007) (SR-NYSEArca-2007-123). The Pilot Program was most recently 
extended for an additional six months, until November 30, 2008. See 
Securities Exchange Act Release No. 57922 (June 4, 2008), 73 FR 
33137 (June 11, 2008) (SR-NYSEArca-2008-55). This filing is being 
submitted as an amendment to the Pilot Program.
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    While this proposed amendment to the Pilot Program will allow an 
issuer to qualify for listing even though the closing price of its 
stock may be less than $5 or the market value of its listed securities 
may be less than $150 million for some days in the 90 trading day 
period, any such shortfalls will have to be offset by periods when the 
closing stock price exceeds $5 or the market value of listed securities 
exceeds $150 million by enough to enable the issuer to maintain the 
necessary average. As such, the Exchange believes that the amended 
methodology will continue to require companies to display on a 
sustained basis that they are of the appropriate size for listing on 
the Exchange.\4\
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    \4\ The Exchange notes that Nasdaq Global Market Standard 3 
requires issuers whose stock is publicly traded immediately prior to 
listing to maintain a closing stock price of $5 and a market value 
of listed securities of $75 million for 90 consecutive trading days 
prior to applying for listing. While the proposed amendment may 
enable the Exchange to list issuers from time to time that would not 
meet its $5 closing stock price or market value requirements for 90 
consecutive days, the Exchange notes that its market value of listed 
securities requirement is twice that of the comparable Nasdaq 
standard and that the Exchange requires a public float of $45 
million, while the comparable Nasdaq standard requires a public 
float of only $20 million. As such, the Exchange believes that its 
standard as amended is still substantially more stringent than 
Nasdaq Global Market Standard 3.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the objectives of Section 6 of the Act,\5\ in general, and 
furthers the objectives of Section 6(b)(5) of the Act,\6\ in 
particular, in that it is designed to promote just and equitable 
principles of trade, to remove impediments, and to perfect the 
mechanism of, a free and open market and a national market system, and, 
in general, to protect investors and the public interest. The proposed 
amendment specifically seeks to remove impediments to and perfect the 
mechanisms of a free and open market by allowing NYSE Arca to compete 
with Nasdaq for listings of companies that may not currently be 
qualified to list on NYSE Arca, but would be qualified to list on the 
Nasdaq Global Market.
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    \5\ 15 U.S.C. 78f.
    \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 will 
impose any burden on competition that is not

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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

    Written comments on the proposed rule change were neither solicited 
nor received.

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 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-2008-56 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEArca-2008-56. 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, 100 F Street, 
NE., Washington, DC 20549, on official business days between the hours 
of 10 a.m. and 3 p.m. 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-2008-56 and should 
be submitted on or before July 11, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\7\
Florence E. Harmon,
Acting Secretary.
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    \7\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E8-13944 Filed 6-19-08; 8:45 am]

BILLING CODE 8010-01-P
