
[Federal Register: November 13, 2008 (Volume 73, Number 220)]
[Notices]               
[Page 67241-67243]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13no08-89]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58900; File No. SR-NYSE-2008-105]

 
Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC To 
Shorten the Time Period for Listed Companies To Issue a Press Release 
After Receipt of Notification That the Company Is Noncompliant With the 
Exchange's Price Test

November 5, 2008.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that on October 28, 2008, 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\ 15 U.S.C. 78a.
    \3\ 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 amend Section 802.01C of the Exchange's 
Listed Company Manual (the ``Manual'') to provide that the Exchange 
will require a U.S. company, upon receiving written notification that 
it has fallen below the Exchange's $1.00 stock price requirement over a 
30 trading-day average, to issue a press release within the same amount 
of time as allotted by the SEC for the company to disclose such an 
occurrence, but in any event no later than four business days after 
receipt of notification from the Exchange, and will require a non-U.S. 
company to issue a press release within 30 days of receiving written 
notification from the Exchange that it has fallen below the Exchange's 
$1.00 stock price requirement. 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 self-regulatory organization 
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 NYSE 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 amend Section 802.01C of the Manual to 
provide that the Exchange will require a U.S. company, upon receiving 
written notification that it has fallen below the Exchange's $1.00 
stock price requirement over a 30 trading-day average, to issue a press 
release within the same amount of time as allotted by the SEC for the 
company to disclose such an occurrence, but in any event no later than 
four business days after receipt of notice from the company. The 
Exchange will require a non-U.S. company to issue a press release 
within 30 days of receiving written notification from the Exchange that 
it has fallen below the Exchange's $1.00 stock price requirement. By 
doing so, the Exchange is conforming its requirements under Section 
802.01C to the press release requirements in relation to other 
notifications of events of noncompliance as set forth in Section 802.02 
(for domestic companies) and Section 802.03 (for foreign private 
issuers).\4\
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    \4\ See Exchange Act Release No. 58487 (September 8, 2008), 73 
FR 53303 (September 15, 2008) (SR-NYSE-2008-59). Nothing in this 
proposal affects a company's obligations to disclose material news 
in a timely fashion. See Section 202.05 of the Manual. There are 
currently no companies that have received notifications from the 
Exchange regarding non-compliance with the Exchange's stock price 
continued listing requirements and that have not already issued the 
required press release. As such, the revised time periods this 
filing establishes for companies that are non-compliant under 
Sections 802.01C (including foreign companies) will apply only to 
those companies that receive a notice of non-compliance subsequent 
to the submission of this filing.

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[[Page 67242]]

    Currently, Section 802.01C of the Manual requires a U.S. company to 
issue a press release within 45 days of receiving written notification 
from the Exchange that it has fallen below the Exchange's stock price 
requirement. Section 802.01C also provides that, if the company fails 
to issue a press release by the deadline specified by the rule, the 
Exchange will itself issue the requisite press release. However, SEC 
rules require the company to file a Form 8-K giving notice of that 
event within four business days of being notified by the Exchange.\5\ 
The Exchange believes that its own requirement is too long in light of 
the much earlier public notice required by the Form 8-K rule and that 
it is appropriate for the Exchange to issue a press release on the 
subject itself if the company has not acted within the period provided 
by Form 8-K and in any event no later than four business days after 
receipt of notification from the Exchange. The Exchange notes that 
companies that are incorporated in jurisdictions outside the United 
States but that do not qualify as foreign private issuers are treated 
as domestic companies for purposes of Section 802.01C.
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    \5\ Item 3.01 of Form 8-K requires a registrant to file a Form 
8-K within four business days of receipt of notice from the national 
securities exchange that maintains the principal listing for any 
class of the registrant's common equity that the registrant or such 
class of the registrant's securities does not satisfy a rule or 
standard for continued listing on the exchange.
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    Currently, Section 802.01C of the Manual requires a non-U.S. 
company to issue a press release within 90 days of receiving written 
notification from the Exchange that it has fallen below the Exchange's 
stock price requirement. Section 802.01C also provides that, if the 
company fails to issue a press release by the deadline specified by the 
rule, the Exchange will itself issue the requisite press release. While 
foreign private issuers are not subject to the Form 8-K requirement 
imposed on domestic issuers, the Exchange believes that 90 days is an 
excessive period to give companies to make such a material disclosure. 
Based on our experience with these companies, 30 days would be more 
than sufficient. As such, the Exchange proposes to shorten from 90 to 
30 days the period within which foreign private issuers must issue a 
press release with regard to a notification by the Exchange of 
noncompliance. If the issuer does not issue a press release within that 
30 day period, the Exchange will do so.
    While Section 802.01C establishes maximum time periods for the 
issuance of press releases, the Exchange believes that companies should 
issue their press releases concerning any notice of noncompliance they 
receive from the Exchange as soon as possible after receipt of such 
notification and should not wait until close to the end of the 
permitted period before doing so.
2. Statutory Basis
    The basis under the Securities Exchange Act of 1934 (the ``Act'') 
\6\ for this proposed rule change is the requirement under Section 
6(b)(5) \7\ that an Exchange have rules that are designed to promote 
just and equitable principles of trade, 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. 
In particular, the Exchange believes that the proposed amendment 
protects investors and the public interest by ensuring the prompt 
disclosure of material information with respect to listed companies.
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    \6\ 15 U.S.C. 78a et seq.
    \7\ 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 purpose of the Exchange 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.

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 \8\ and 
Rule 19b-4(f)(6) thereunder.\9\
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    \8\ 15 U.S.C. 78s(b)(3)(A).
    \9\ 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 this requirement.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the 
Act \10\ normally does not become operative for 30 days after the date 
of its filing. However, Rule 19b-4(f)(6)(iii) \11\ permits the 
Commission to designate a shorter time if such action is consistent 
with the protection of investors and the public interest. The Exchange 
has requested that the Commission waive the 30-day operative delay.
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    \10\ 17 CFR 240.19b-4(f)(6).
    \11\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Commission believes that waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest 
because it will allow the Exchange to immediately conform the press 
release timing requirements for companies that are noncompliant with 
the Exchange's $1.00 stock price test in Section 802.01C of the Manual 
with the press release timing requirements in Sections 802.02 and 
802.03 of the Manual that apply to companies that are noncompliant with 
the Exchange's other continued listing standards.\12\ Because the 
Commission recently approved these similar timing requirements in 
Sections 802.02 and 802.03 of the Manual,\13\ the Commission believes 
that the proposed rule change raises no new regulatory issues. The 
Commission also notes that the prior changes to these other sections of 
the Manual were subject to full notice and comment, and the Commission 
received one comment in support of that proposal. Further, the 
Commission notes that the proposed rule change will provide investors 
with earlier press release notification that a company has fallen out 
of compliance with the Exchange's stock price requirement and also 
avoids any confusion for domestic companies by conforming the time 
periods in the NYSE rules with current Commission requirements for the 
filing of the Form 8-K. For these reasons, the Commission designates 
that the proposed rule change become operative immediately upon 
filing.\14\
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    \12\ See continued listing standards in Section 802.01 of the 
Manual.
    \13\ See supra note 4.
    \14\ 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

[[Page 67243]]

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-2008-105 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-2008-105. 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, 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-2008-105 and should be submitted on or before December 4, 2008.

    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. E8-26894 Filed 11-12-08; 8:45 am]

BILLING CODE 8011-01-P
