
[Federal Register: December 30, 2008 (Volume 73, Number 250)]
[Notices]               
[Page 79961-79962]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de08-147]                         


[[Page 79961]]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59123; File No. SR-NYSE-2008-128]

 
Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC To 
Amend the Requirements of Section 203.01 of the Listed Company Manual 
with respect to Annual Reports

December 19, 2008.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Exchange Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is 
hereby given that, on December 16, 2008, New York Stock Exchange, LLC 
(the ``NYSE'' or the ``Exchange'') filed with the Securities and 
Exchange Commission the proposed rule changes [sic] 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 changes [sic] from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to provide that a listed company that is 
subject to the U.S. proxy rules, or is an issuer not subject to the 
proxy rules that provides its audited financial statements to 
beneficial shareholders in a manner that is consistent with the 
physical or electronic delivery requirements applicable to annual 
reports set forth in the U.S. proxy rules, is not required to issue the 
press release or post the undertaking required by Section 203.01. 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 203.01 of the NYSE Listed 
Company Manual to provide that a listed company that is subject to the 
U.S. proxy rules, or is an issuer not subject to the proxy rules that 
provides its audited financial statements to beneficial shareholders in 
a manner that is consistent with the physical or electronic delivery 
requirements applicable to annual reports set forth in the U.S. proxy 
rules, is not required to issue the press release or post the 
undertaking required by Section 203.01.
    Section 203.01 was amended in August 2006 to eliminate the 
requirement that companies physically distribute an annual report 
containing audited financial statements.\4\ The rule currently requires 
that a listed company must make its annual report filed with the SEC 
simultaneously available on or through its Web site. Listed companies 
are also required to post a prominent undertaking on their Web site 
providing all holders the ability to receive a hard copy of the audited 
financial statements upon request and to issue a press release stating 
that the filing is available and reiterating that all shareholders have 
the ability to receive a hard copy upon request.
---------------------------------------------------------------------------

    \4\ See Exchange Act Release No. 54344 (August 21, 2006), 71 FR 
51260 (August 29, 2006) (SR-NYSE-2005-68).
---------------------------------------------------------------------------

    Since the section was amended, however, the Exchange believes that 
many U.S. companies are very confused by the press release and Web site 
undertaking requirements of Section 203.01 since many of them still 
avail themselves of the option under the proxy rules to meet the annual 
report distribution requirement by means of a physical distribution. In 
light of the fact that many U.S. companies still meet the annual report 
distribution requirement by means of a physical distribution and a 
number of foreign companies voluntarily comply with the requirements of 
the U.S. proxy rules by making physical distributions, the Exchange 
proposes to amend Section 203.01 to provide that a listed company that 
is subject to the U.S. proxy rules, or is an issuer not subject to the 
proxy rules that provides its audited financial statements (as included 
on Forms 10-K, 20-F and 40-F) to beneficial shareholders in a manner 
that is consistent with the physical or electronic delivery 
requirements applicable to annual reports set forth in the U.S. proxy 
rules, is not required to issue the press release or post the 
undertaking required by Section 203.01.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) \5\ of the Exchange Act 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 
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. 
The Exchange believes the proposed rule change is consistent with the 
protection of investors, as only companies that are distributing their 
annual financial statements to beneficial holders in a manner 
consistent with the requirements of the Commission's proxy rules will 
be exempted from the press release and undertaking requirements of 
Section 203.01.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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 Exchange 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

    The proposed rule change has taken effect upon filing pursuant to 
Section 19(b)(3)(A) of the Exchange Act.\7\
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78s(b)(3)(A).
---------------------------------------------------------------------------

    The Exchange asserts that the proposed rule change (i) will not 
significantly affect the protection of investors or the public 
interest, (ii) will not impose any significant burden on competition, 
and (iii) will not become operative for 30 days after the date of this 
filing, or such shorter time as the Commission may designate if 
consistent

[[Page 79962]]

with the protection of investors and the public interest. The Exchange 
provided the Commission with 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 
the filing of the proposed rule change as required by Rule 19b-
4(f)(6).\8\
---------------------------------------------------------------------------

    \8\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) normally does 
not become operative for 30 days after the date of filing. However, 
Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter 
time if such action is consistent with the protection of investors and 
the public interest. NYSE has requested that the Commission waive the 
30-day delayed operative date, as permitted by Rule 19b-4(f)(6)(iii), 
so that the proposed rule change may become operative immediately. The 
Exchange believes that such waiver is appropriate so that a company 
that qualifies for the exemption and is filing its annual report with 
the Commission during the 30 days after the effective date of the 
proposal may be relieved of the obligation to issue a press release in 
relation to its filing. The Commission believes that waiving the 30-day 
operative delay is consistent with the protection of investors and the 
public interest because it relieves companies of an obligation that may 
be redundant for companies that already meet the delivery requirements 
applicable to annual reports set forth in the U.S. proxy rules, and 
that in any case will no longer be applicable to companies similarly 
situated after the 30-day period.\9\ Accordingly, the Commission 
designates the proposed rule change as operative upon filing with the 
Commission.
---------------------------------------------------------------------------

    \9\ 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. See 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule 
change, the Commission may summarily abrogate such 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 Exchange 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 Exchange 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-2008-128 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-2008-128. 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-2008-128 and should be submitted on or before January 20, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\10\
Florence E. Harmon,
Acting Secretary.
---------------------------------------------------------------------------

    \10\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

 [FR Doc. E8-30897 Filed 12-29-08; 8:45 am]

BILLING CODE 8011-01-P
