
[Federal Register: October 2, 2008 (Volume 73, Number 192)]
[Notices]               
[Page 57390-57391]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02oc08-120]                         


[[Page 57390]]

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SECURITIES AND EXCHANGE COMMISSION

Release No. 34-58650; File No. SR-Amex-2008-65]

 
 Self-Regulatory Organizations; American Stock Exchange LLC; 
Order Approving Proposed Rule Change To Allow Issuers of Exchange-
Traded Funds (``ETFs'') and Structured Products Who Are Voluntarily 
Delisting the Securities From the Exchange and Re-Listing on Another 
National Securities Exchange To Submit to the Exchange a Letter From an 
Authorized Officer of the Issuer Rather Than a Certified Copy of Board 
of Directors Resolutions

September 25, 2008.

I. Introduction

    On August 7, 2008, American Stock Exchange LLC (``Amex'' or 
``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 Amex Rule 18 to allow issuers of 
exchange-traded funds (``ETFs'') and structured products who are 
voluntarily delisting the securities from the Exchange and re-listing 
on another national securities exchange to submit a letter to the 
Exchange from an authorized executive officer of the issuer, rather 
than a certified copy of board resolutions. The proposed rule change 
was published for comment in the Federal Register on August 21, 
2008.\3\ The Commission received no comments regarding the proposal. 
This order approves 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. 58364 (August 14, 
2008), 73 FR 49508.
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II. Description of the Proposal

    The Exchange seeks to amend Amex Rule 18, which governs the 
procedure by which an issuer may voluntarily withdraw securities from 
listing. Currently, Amex Rule 18 requires an issuer to provide the 
Exchange with a certified copy of the resolution of its board of 
directors approving the delisting. Under the proposed rule change, an 
issuer of certain securities \4\ that proposes to delist and re-list 
its securities on another national securities exchange may, in lieu of 
providing the Exchange with a certified copy of the board resolution, 
provide the Exchange with a letter signed by an authorized executive 
officer of the issuer. That letter must set forth the reasons for the 
delisting, and provide the basis of the officer's authority to take 
such action. In addition, the proposed rule change would be effective 
as of the date of closing of the acquisition of the Exchange by NYSE 
Euronext, the ultimate parent company of the Exchange (``NYSE 
Acquisition'').\5\ In the event the closing date does not occur on or 
before December 31, 2008, the proposed rule change would not take 
effect and the Exchange would rescind the rule by a separate rule 
filing. In its filing, the Exchange stated that, as part of the NYSE 
Acquisition, NYSE Euronext intends to cease the trading and listing of 
ETF securities and structured products on the Exchange. Upon completion 
of the merger, and to effectuate its business plan, NYSE Euronext will 
request these issuers to voluntarily delist,\6\ and will encourage them 
to re-list on NYSE Arca, Inc. (``NYSE Arca'') and/or New York Stock 
Exchange LLC (``NYSE'').\7\
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    \4\ This proposal applies to securities listed pursuant to 
listed pursuant to Amex Company Guide Sections 104 (Bonds and 
Debentures), 106 (Currency and Index Warrants) or 107 (Other 
Securities) and Exchange Rules 1000-AEMI and 1001 et seq. (Portfolio 
Depositary Receipts), 1000A-AEMI and 1001A et seq. (Index Fund 
Shares), 1000B et seq. (Managed Fund Shares), 1200-AEMI and 1201 et 
seq. (Trading of Trust Issued Receipts), 1200A-AEMI and 1201A et 
seq. (Commodity-Based Trust Shares), 1400 et seq. (Trading of Paired 
Trust Shares), 1500-AEMI and 1501 et seq. (Trading of Partnership 
Units), or 1600 et seq. (Trading of Trust Units).
    \5\ Pursuant to a merger agreement dated January 17, 2008 among 
the Exchange, the Amex Membership Corporation, NYSE Euronext and 
certain other entities, a successor to the Exchange will become an 
indirect, wholly-owned subsidiary of NYSE Euronext. After the 
closing of the merger, the Exchange will be renamed NYSE Alternext 
U.S. LLC.
    \6\ See note 4, supra.
    \7\ See note 14, infra.
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    The Exchange also proposes to make minor clarifying changes to 
Section 1010 of the Amex Company Guide, and to delete from that section 
the restatement of Exchange Rule 18 and Rule 12d2-2 under the Act.

III. Discussion and Commission Findings

    The Commission has reviewed the proposed rule change and finds that 
the proposed rule change is consistent with the requirements of the Act 
and the rules and regulations thereunder 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 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, 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\ In approving this proposed rule change, the Commission has 
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 notes that permitting issuers of ETFs and structured 
products who are voluntarily delisting to submit a letter to the 
Exchange from an authorized executive officer instead of a certified 
copy of the resolution adopted by the issuer's board of directors is 
consistent with the requirements of the Act and Rule 12d2-2 thereunder, 
and is similar to the voluntary withdrawal procedures for dually-listed 
issuers on NYSE Arca,\10\ and index-linked securities on NYSE.\11\ The 
proposal does not alter an issuer's obligation to meet the requirements 
of the issuer's governing documents, the laws of its jurisdiction of 
incorporation, or complying with Rule 12d2-2 under the Act.
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    \10\ See NYSE Arca Equities Rule 5.4(b); see also Securities 
Exchange Act Release No. 54672 (October 30, 2006), 71 FR 65021 
(November 6, 2006) (SR-NYSEAcra-2006-47).
    \11\ See Section 806.02 of the NYSE Listed Company Manual; see 
also Securities Exchange Act Release No. 57041 (December 26, 2007), 
73 FR 216 (January 2, 2008) (SR-NYSE-2007-99).
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    In addition to requiring the letter from the authorized executive 
officer to provide the reasons for the withdrawal, the new rule will 
require the letter to set forth the basis for the officer's authority 
to take such delisting action on behalf of the issuer. This latter 
requirement should help to ensure that the issuer complies with the 
applicable laws in effect in its jurisdiction of incorporation, and has 
the authority to act on behalf of the issuer.\12\ At the same time, the 
proposal may ease the burden on issuers who wish to voluntarily delist 
and transfer the listing to another national securities exchange.\13\
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    \12\ The Commission notes that Rule 12d2-2 specifically 
requires, among other things, that issuers comply with all 
applicable laws in effect in the state in which they are 
incorporated to delist from a national securities exchange. See 17 
CFR 240.12d2-2(c)(2)(i).
    \13\ While NYSE Euronext is requesting that these issuers re-
list on NYSE Arca or the bond platform of NYSE, the Commission notes 
that these issuers are free to choose the best market for their 
securities for which they qualify and the proposed rule does not 
limit the issuer's choice of markets.
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    The Commission also notes that the proposed delisting procedures 
apply only to securities that would be listed

[[Page 57391]]

and traded on another national securities exchange. As such, 
transparent last sale information will continue to be disseminated on 
the securities on an uninterrupted basis. Further, this requirement 
will ensure other protections for trading a security on a national 
securities exchange will remain in place, such as the periodic 
reporting obligations under the Act.
    Further, the Commission finds that the deletion of the restatements 
of Rule 18 and Rule 12d2-2 in the Amex Company Guide is consistent with 
the requirements of the Act. The rules of Amex and the Commission are 
equally available on the Internet, and are updated when changed. As 
such, the restatements in the Company Guide are no longer necessary. 
The Exchange rules, however, will continue to reference Rule 12d2-2 to 
ensure issuers know they must comply with that rule, as well as the 
Exchange's requirements, to delist.
    Finally, as noted above, the new rule will only be implemented upon 
the closing of the Exchange Acquisition. The Exchange has represented 
that, upon closing of the merger, it will notify applicable issuers 
that the rule has become effective.\14\
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    \14\ Telephone conversation between Marija Willen, Vice 
President and Associate General Counsel, Amex, and Steve Kuan, 
Special Counsel, Commission, on September 25, 2008.
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IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 
that the proposed rule change (SR-Amex-2008-65) be, and it hereby is, 
approved.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
 [FR Doc. E8-23194 Filed 10-1-08; 8:45 am]

BILLING CODE 8011-01-P
