
[Federal Register: August 11, 2008 (Volume 73, Number 155)]
[Notices]               
[Page 46674-46676]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au08-121]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58303; File No. SR-NYSE-2008-62]

 
Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change to 
Eliminate Sections 305 and 308 and the Shareholder Rights Provisions of 
Section 314 of the Listed Company Manual

August 4, 2008.
    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 July 28, 2008, the New York Stock Exchange LLC (the ``NYSE'' or 
the ``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'' or ``SEC'') the proposed rule change as described in 
Items I and II below, which Items have been 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 eliminate Sections 305 (``Concentration of 
Voting Power'') and 308 (``Defensive Tactics'') and the shareholder 
rights provisions of Section 314 (``Special Rights of Certain 
Shareholders'') of the Exchange's Listed Company Manual (the 
``Manual''). The text of the proposed rule change is available on the 
Exchange's Web site (http://www.nyse.com), at the Exchange'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 Exchange 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 Exchange proposes to eliminate from its Manual Sections 305 
(``Concentration of Voting Power'') and 308 (``Defensive Tactics'') and 
the shareholder rights provisions of Section 314 (``Special Rights of 
Certain Shareholders''). Section 305 provides that, while a significant 
concentration of a company's common stock in one holding is not a bar 
to listing, the Exchange will consider the existence of such a 
concentrated position in rendering a decision to list that company. 
Section 308 deals with provisions that discriminate among shareholders 
or nullify or reduce the voting power of common stockholders. Section 
314 expresses the Exchange's concern about the existence of special 
rights limited to one shareholder or a group of shareholders, such as 
the right to sell stock back to the company or preemptive rights (i.e., 
the right to purchase stock from the company at the time of any sale to 
any other party, so as to maintain that shareholder's proportionate 
interest in the company).\3\
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    \3\ Section 314 also states an Exchange policy that an 
appropriate body within the company should examine the 
appropriateness of related party transactions. The Exchange does not 
propose to eliminate these provisions in this filing. However, the 
Exchange is making some nonsubstantive changes to these provisions.
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    The Exchange proposes to retain the related party transaction 
policy of Section 314. However, the Exchange proposes to delete that 
part of Section 314 which pertains to shareholder rights, as well as 
the entirety of Sections 305 and 308. The provisions that the Exchange 
proposes to eliminate each embody Exchange policies in relation to 
shareholder rights. As such, the Exchange believes that these rules no 
longer serve any purpose as they are superseded by the Exchange's 
shareholder rights policy as set forth in Section 313.
    In 1994, at the suggestion of then SEC chairman Arthur Levitt, the 
NYSE, the American Stock Exchange (the ``Amex'') and NASD each agreed 
to adopt a uniform policy (the ``Uniform Voting Rights Policy'') with 
respect to the voting rights of common stockholders.\4\ The NYSE 
adopted the Uniform Voting Rights Policy as an amendment to the 
Exchange's existing voting rights policy, Section 313 of the Manual. 
The NYSE adopted Section 313 in its earlier form in 1989,\5\ intending 
that it would constitute the Exchange's only voting rights policy. To 
that end, the Exchange included in its filing in relation to the 
adoption of Section 313 a proposal to eliminate Section 308 of the 
Manual on the basis that it dealt with the same sorts of issues as 
Section 313 and was therefore redundant and superseded by Section 313. 
In approving Section 313 in 1989, the SEC stated that it was ``still 
reviewing [the Section 308] portion of the proposal'' and was therefore 
not approving the elimination of Section 308 at that time.
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    \4\ See Securities Exchange Act Release No. 35121 (December 19, 
1994), 59 FR 66570 (December 27, 1994) (SR-NYSE-94-20).
    \5\ See Securities Exchange Act Release No. 27554 (December 20, 
1989), 54 FR 53227 (December 27, 1989) (SR-NYSE-89-16).
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    When the exchanges adopted the Uniform Voting Rights Policy, it was 
the Commission's stated intention that it would result in a uniform 
industry-wide approach to voting rights issues. In light of this 
philosophical approach, the Exchange has long believed that Sections 
305, 308 and the shareholder rights provisions of Section 314 have been 
superseded by the Uniform Voting Rights Policy and that it is 
appropriate to consider shareholder rights issues solely in the context 
of Section 313. In the Exchange's experience, the continued presence of 
these provisions in the Manual causes occasional confusion among 
issuers and their

[[Page 46675]]

counsel, raising concerns among issuers as to whether they are fully in 
compliance with Exchange rules even in the context of Exchange advice 
that their provisions do not violate Section 313. This can be 
problematic in particular in relation to companies that are considering 
transferring their listing from Nasdaq or the Amex, where those 
companies are experienced with dealing with the Uniform Voting Rights 
Policy as the sole authority in the shareholder rights area.
    The Exchange believes that it is appropriate to eliminate Sections 
305, 308 and the shareholder rights provisions of Section 314. Their 
continued existence is inconsistent with the intention that the Uniform 
Voting Rights Policy should be the sole controlling authority in the 
area of shareholder rights and the existence of this discrepancy 
between the Exchange and its competitors places the Exchange at a 
competitive disadvantage. The Exchange notes that neither Nasdaq nor 
the Amex has comparable rules to Sections 305, 308 and the shareholder 
rights provisions of Section 314. As such, the proposed elimination of 
these provisions is consistent with the philosophy that the Uniform 
Voting Rights Policy represents a common approach to shareholder rights 
across all of the major markets. It also eliminates a potential 
competitive advantage [sic] that the NYSE currently faces in competing 
for listings. Furthermore, the Exchange's experience with the Uniform 
Voting Rights policy is that it has been a successful mechanism for the 
prevention of abuses of shareholder rights. As such, the Exchange 
believes that the elimination of Sections 305, 308 and the shareholder 
rights provisions of Section 314 will not diminish the protections 
against such abuses currently afforded to listed company shareholders.
2. Statutory Basis
    The basis under the Act for this proposed rule change is the 
requirement under Section 6(b)(5) \6\ that an exchange have rules that 
are designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, to remove 
impediments to, and perfect the mechanism of a free and open market 
and, in general, to protect investors and the public interest. The 
proposed rule change promotes the mechanism of a free and open market 
by fully conforming the shareholder rights policies of the Exchange to 
those of Nasdaq and the Amex, eliminating a potential competitive 
disadvantage in competing for listings. The Exchange believes that the 
proposed amendment is consistent with the protection of investors and 
the public interest as the Exchange's continued application of the 
Uniform Voting Rights Policy will continue to provide significant 
protections with respect to shareholder rights.
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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 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

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the proposed rule change: (i) Does not significantly affect 
the protection of investors or the public interest; (ii) does not 
impose any significant burden on competition; and (iii) does not become 
operative for 30 days after the date of the filing, or such shorter 
time as the Commission may designate if consistent with the protection 
of investors and the public interest, the proposed rule change has 
become effective pursuant to Section 19(b)(3)(A) of the Act \7\ and 
Rule 19b-4(f)(6) thereunder.\8\
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    \7\ 15 U.S.C. 78s(b)(3)(A).
    \8\ 17 CFR 240.19b-4(f)(6). Pursuant to Rule 19b-4(f)(6)(iii) 
under the Act, the Exchange is required to give the Commission 
written notice of its intent to file the proposed rule change, along 
with a brief description and text of the proposed rule change, at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied the five-day pre-filing requirement.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the 
Act \9\ normally does not become operative for 30 days after the date 
of its filing. However, Rule 19b-4(f)(6)(iii) \10\ permits the 
Commission to designate a shorter time if such action is consistent 
with the protection of investors and the public interest. The NYSE has 
requested that the Commission waive the 30-day operative delay. The 
Commission believes that waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest 
because it would allow the NYSE to immediately conform its shareholder 
voting rights rules to those of other exchanges by eliminating voting 
rights provisions that other exchanges do not have. The Commission 
believes that this should eliminate a potential competitive 
disadvantage that the NYSE currently faces in competing for listings. 
However, the Commission notes that the NYSE's current Uniform Voting 
Rights Policy should continue to provide important protections with 
regard to shareholder rights. For these reasons, the Commission 
designates that the proposed rule change become operative 
immediately.\11\
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    \9\ 17 CFR 240.19b-4(f)(6).
    \10\ 17 CFR 240.19b-4(f)(6)(iii).
    \11\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission may summarily abrogate the rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of the Act.

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-NYSE-2008-62 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-NYSE-2008-62. 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

[[Page 46676]]

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, on official business days between the hours of 10 a.m. 
and 3 p.m. Copies of the 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-NYSE-2008-62 and should be 
submitted on or before September 2, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
 [FR Doc. E8-18372 Filed 8-8-08; 8:45 am]

BILLING CODE 8010-01-P
