
[Federal Register: November 19, 2008 (Volume 73, Number 224)]
[Notices]               
[Page 69706-69708]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19no08-129]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58928; File No. SR-NYSE-2008-109]

 
Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing of Proposed Rule Change To Clarify Amendments to 
``Other Securities'' Initial Listing Standard

November 10, 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 October 31, 2008, New York Stock Exchange LLC (``NYSE'' 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 prepared by the Exchange. The 
Commission is publishing this notice to solicit comments on the 
proposal 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 amend Section 703.19 of the Exchange's 
Listed Company Manual (the ``Manual''), the Exchange's initial listing 
standards for ``Other Securities.'' The proposed amendment would 
clarify that companies that are not listed on the Exchange that wish to 
list securities under Section 703.19 must meet one of the Exchange's 
financial original listing standards for equity listings, but need not 
meet any of the other initial listing requirements set forth in Section 
One of 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 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 Exchange has prepared summaries, set forth in 
Sections A, B, and C below, of

[[Page 69707]]

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 703.19 of the Manual, the 
Exchange's initial listing standards for ``Other Securities.'' \3\ The 
proposed amendment would clarify that companies that are not listed on 
the Exchange that wish to list securities under Section 703.19 must 
meet one of the Exchange's financial original listing standards for 
equity listings, but need not meet any of the other initial listing 
requirements set forth in Section One of the Manual.
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    \3\ Section 703.19 was adopted to provide the Exchange with the 
flexibility to list securities that could not be readily categorized 
under the Exchange's traditional listing standards for common and 
preferred stocks, debt securities and warrants. Section 703.19 was 
intended to provide flexibility to enable the Exchange to consider 
the listing of new securities on a case-by-case basis, in light of 
the suitability of the issue for auction market trading. Section 
703.19 is not intended to accommodate the listing of securities that 
raise significant new regulatory issues, which would require a 
separate filing with the Commission. See Securities Exchange Act 
Release No. 28217 (July 18, 1990) 55 FR 30056 (July 24, 1990) (SR-
NYSE-90-30).
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    The Exchange has long required that unlisted companies wishing to 
list securities under Section 703.19 must meet its initial common stock 
listing standards as set forth in Sections 102.01-102.03 and 103.01-05 
of the Manual. While these sections contain common stock distribution 
requirements (such as the requirement of Section 102.01A that companies 
listing in connection with an IPO must have at least 400 round lot 
holders and 1.1 million publicly-held shares) and public float 
requirements (such as the requirement of 102.01B that IPOs must have a 
minimum float of $60 million and all other companies must have a public 
float of $100 million at the time of initial listing), the Exchange has 
not imposed these standards with respect to an issuer's common stock 
when it is only listing securities under Section 703.19. Rather, the 
Exchange has interpreted the requirement of Section 703.19 as being 
simply that the company must meet the financial requirements of one of 
the Exchange's initial listing standards as set forth in Section 
102.01C (i.e., the Earnings Test, the Valuation/Revenue Test, the Pure 
Valuation/Revenue Test and the Affiliated Company Test) or Section 
103.01C [sic] (i.e., the Earnings Test, the Valuation/Revenue Test, the 
Pure Valuation/Revenue Test and the Affiliated Company Test). While the 
Exchange strongly believes that it needs to ensure that any company 
that lists its securities under Section 703.19 is of the financial 
caliber that is required of an NYSE company, it does not believe the 
common stock distribution and public float requirements are relevant to 
this qualitative analysis as these requirements are relevant solely 
with respect to the quality of the trading market in the common stock.
    Recently, the Exchange amended its common stock initial listing 
standards in Section 102.01B and 103.01A to require listing applicants 
at the time of listing to have a closing price, or if listing in 
connection with an IPO, an IPO price of $4 at the time of initial 
listing.\4\ The Exchange believes that the same rationale articulated 
above with respect to distribution and public float requirements 
applies in the case of this price requirement, i.e., it is relevant to 
the quality of the trading market for the common stock but not to the 
qualitative analysis the Exchange performs with respect to a company 
wishing to list securities under Section 703.19.
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    \4\ See Securities Exchange Act Release No. 27597 [sic] (May 6, 
2008), 73 FR 27597 (May 13, 2008) (SR-NYSE-2008-17).
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    To avoid any ambiguity in the application of Section 703.19 to 
companies that do not have their common stock listed on the Exchange, 
the Exchange proposes to replace the requirement that companies must 
meet the Exchange's initial common stock listing standards as set forth 
in Sections 102.01-102.03 and 103.01-05 of the Manual with a more 
narrowly-tailored requirement that such companies must meet one of the 
financial standards in Section 102.01C or, if applicable, in the case 
of foreign companies, Section 103.01B. The Exchange also proposes to 
remove the sub-heading (``Earnings/Net Tangible Assets'') from the 
second paragraph of Section 703.19, as it is a remnant from a much 
earlier version of the rule and is a source of confusion.
2. Statutory Basis
    The basis under the Act for this proposed rule change is the 
requirement under Section 6(b)(5) \5\ 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 
Exchange believes that the proposed amendment is consistent with the 
protection of investors and the public interest in that the Exchange 
will continue to apply stringent eligibility requirements to securities 
listed under Section 703.19.
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    \5\ 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 this proposed rule change would 
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 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-NYSE-2008-109 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-2008-109. This file 
number should be included on the subject line if e-mail is used. To 
help the

[[Page 69708]]

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 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-2008-109 and should be submitted on 
or before December 10, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\6\
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    \6\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-27419 Filed 11-18-08; 8:45 am]

BILLING CODE 8011-01-P
