[Federal Register Volume 59, Number 121 (Friday, June 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15430]


[[Page Unknown]]

[Federal Register: June 24, 1994]


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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-34235; International Series Release No. 675; File No. 
SR-Phlx-93-31]

 

Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; 
Order Approving Proposed Rule Change and Notice of Filing and Order 
Granting Accelerated Approval to Amendments No. 1, 2, 3, and 4 Relating 
to New Listing and Maintenance Standards

June 17, 1994.

I. Introduction

    On July 20, 1993, the Philadelphia Stock Exchange (``Phlx'' or 
``Exchange'') submitted to the Securities and Exchange Commission 
(``SEC'' or ``Commission''), pursuant to Section 19(b)(1) of the 
Securities Exchange Act of 1934 (``Act'')\1\ and Rule 19b-4\2\ 
thereunder, a proposed rule change to establish new quantitative and 
qualitative listing standards with respect to common stock, preferred 
stock, bonds and debentures, various types of warrants, contingent 
value rights, and other securities. Subsequently, the Phlx filed 
Amendments No. 1, 2, 3 and 4, dated January 5, 1994, March 28, 1994, 
May 10, 1994 and June 17, 1994 respectively.\3\
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    \1\15 U.S.C. 78s(b)(1) (1988).
    \2\17 CFR 240.19b-4 (1993).
    \3\These amendments, which are available in the Commission's 
Public Reference Room, were largely technical in nature and 
generally had no substantive impact on the original filing. The 
Commission, therefore, is granting accelerated approval with respect 
to these amendments.
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    Notice of the proposed rule change appeared in the Federal Register 
on September 28, 1993.\4\ The Commission received no comment letters 
regarding the proposal. This order approves the rule change.\5\
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    \4\Securities Exchange Act Release No. 32707; International 
Series Release No. 571 (Aug. 2, 1993), 58 FR 42591 (Aug. 10, 1993).
    \5\The rule change was approved for filing with the Commission 
at a meeting the Phlx Board of Governors on March 17, 1993.
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II. Description of the Rule Change

    This rule change enhances Phlx's current listing standards by 
adopting quantitative and qualitative standards that generally are more 
stringent than the current standards. The rule change eliminates all 
the current listing standards, except for the proxy rules,\6\ and 
imposes new standards. In particular, the rule change establishes a 
two-tier structure for listing common stock, preferred stock, bonds and 
debentures, various types of warrants,\7\ contingent value rights, and 
other securities. The rule change includes original listing and 
maintenance criteria and establishes qualitative standards and 
corporate governance policies applicable to all listed companies. Tier 
I and Tier II securities are distinguished with respect to quantitative 
initial listing and maintenance standards, transaction reporting 
symbols,\8\ and listing fees. All listed issues will be traded pursuant 
to identical auction rules.
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    \6\The current proxy rules are found in rules 851-66. The rule 
change makes minor technical changes to the proxy rules and 
redesignates them as rules 860-66, respectively.
    \7\These warrants include standard warrants, warrants based on 
established market indices and warrants based on currency.
    \8\Both Tier I and Tier II securities will be subject to real-
time last-sale reporting. Telephone conversation between Michele R. 
Weisbaum, Associate General Counsel, Phlx, and Beth Stekler, 
Attorney, SEC, on June 16, 1994.
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    Tier I contains more stringent quantitative standards than the 
Phlx's current standards. Tier II, on the other hand, is substantially 
comparable to the current standards, although Tier II's numerical 
standards are higher than the Phlx's current minimum standard. Tier II 
is designed to provide mid-sized companies and research and development 
companies a forum for exchange listing without having to meet the 
higher Tier I numerical standards.
    The rule change also establishes, for listed companies falling 
below the listing criteria or otherwise failing to comply with the 
listing agreement, suspension and delisting policies and procedures 
intended to ensure uniform treatment of issuers whose securities are 
subject to delisting. To prevent any appearance of disparate treatment 
between issues, the Phlx has represented that both tier standards for 
initial and continued listing of securities are mandatory and non-
waivable.\9\
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    \9\See Securities Exchange Act Release No. 32707; International 
Series Release No. 571 (Aug. 2, 1993), 58 FR 42591 (Aug. 10, 1993) 
(Phlx statement that ``both tier standards for initial and 
maintenance listing of securities are mandatory and non-waivable'').
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    Under the proposed rule change, a new Allocation, Evaluation and 
Securities Committee (``Committee'') has responsibility for 
administering the rules governing listing. Initial review of original 
listing applications continue to be the responsibility of the 
Exchange's Department of Securities.\10\
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    \10\The rules include additional qualitative factors that the 
exchange may consider upon application for original listing. Such 
factors include the nature of a company's business, the market for a 
company's product, whether the company is a going concern or the 
successor thereof, and the company's history and growth prospects.
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1. Tier I

    The Phlx's new listing standards for Tier I common stock are based 
on standards established in a Memorandum of Understanding (``MOU'') 
between the National Association of Securities Dealers, Inc. (``NASD'') 
and the North American Securities Administrators Association 
(``NASAA'').\11\ The NASD and NASAA developed the MOU, entitled ``A 
Model Uniform Marketplace Exemption,'' in an effort to provide Nasdaq 
National Market issuers a basis for obtaining an exemption from state 
securities registration requirements (i.e., blue sky exemption).\12\ 
The MOU created minimum quantitative initial inclusion and maintenance 
standard, corporate governance requirements and minimum voting rights 
for inclusion of a security in the Nasdaq National Market. The Phlx has 
adopted the MOU's two alternative minimum quantitative initial 
inclusion standards for common stock, as follows:
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    \11\The MOU criteria were approved by the NASAA membership on 
October 10, 1988 and published in Securities Exchange Act Release 
No. 6810 (Dec. 16, 1988), 53 FR 52550 (Dec. 28, 1988). NASAA is an 
association of securities administrators from each of the 50 states, 
the District of Columbia, Puerto Rico, Mexico and 12 Canadian 
provinces and territories.
    \12\On January 9, 1989, the Commission approved an NASD rule 
change adopting the standards set forth in the MOU as its inclusion 
standards for Nasdaq National Market securities. Securities Exchange 
Act Release No. 26433 (Jan. 9, 1989), 54 FR 1463 (Jan. 13, 1989) 
(approving SR-NASD-88-36). Currently, every state but one treats 
Nasdaq National Market securities substantially similar to NYSE and 
Amex securities with respect to blue sky registration. Securities 
listed on the Phlx currently enjoy an exemption from the blue sky 
registration in 23 states. In an effort to provision issuers whose 
securities are listed under Tier I a greater opportunity to obtain a 
blue sky exemption, the Phlx is adopting the standards set forth in 
the MOU as the criteria under Tier I.

------------------------------------------------------------------------
              Description                   Alt. No. 1      Alt. No. 2  
------------------------------------------------------------------------
Net Tangible Assets.....................      $4,000,000     $12,000,000
Public Float............................         500,000       1,000,000
Pre-Tax Income..........................         750,000  ..............
Net Income..............................         400,000  ..............
Market Value of Float...................       3,000,000      15,000,000
Minimum Bid.............................        $5/Share        $3/Share
Operating History.......................  ..............         3 Years
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    The minimum number of shareholders under each alternative is 800 
for companies with 500,000 to 1,000,000 shares publicly held and 400 
for companies with over 1,000,000 shares publicly held, or 400 for 
companies with over 500,000 publicly held and daily trading volume in 
excess of 2,000 shares per day for six months.\13\
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    \13\``Net Tangible Assets'' include the value of patents, 
copyrights and trademarks but excludes the value of goodwill.
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    Original listing criteria for preferred stock vary depending on 
where the issuer has common stock listed.\14\ In all cases, a share of 
preferred stock must have a minimum share price of $10.00 to be 
eligible for listing.
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    \14\Where the common stock is listed on the Phlx, NYSE or Amex, 
at least 100,000 shares of preferred stock must be publicly held 
with an aggregate market value of at least $2 million. Where the 
common stock is not so listed, the requirements are a minimum of 
400,000 shares publicly held with an aggregate market value of at 
least $4 million.
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    With respect to bonds, debentures and notes, issuers will be 
evaluated according to the same net tangible assets and earnings 
applicable to equity issuers.\15\ In addition, issuers' ability to 
satisfy the interest and principal payments as they became due would be 
evaluated. Current last sale information must be publicly available and 
independently certifiable with respect to the underlying security into 
which the bond or debenture is convertible.
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    \15\As with preferred stock, the requirements for aggregate 
market value and number of public holders vary depending on whether 
the common stock is listed and traded on the Phlx, NYSE or Amex. 
Numerical requirements are identical to those approved by the 
Commission for the Chicago Board Options Exchange (``CBOE''). See 
Securities Exchange Act Release No. 28556 (Oct. 19, 1990), 55 FR 
43233 (Oct. 26, 1990) (approving SR-CBOE-90-8).
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    In the case of warrants, issuers applying for Tier I listing must 
meet the same net tangible assets, net earnings and distribution 
criteria applicable to equity issuers.\16\ The securities underlying 
the warrants must be listed on the Phlx, NYSE or Amex. With respect to 
warrants based on market indices or currency, the Phlx also will apply 
criteria previously approved for index warrants.\17\
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    \16\Where sold as part of a unit, a minimum of 500,000 warrants 
must be held by not less than 400 holders. See also infra note 21.
    \17\This criteria requires: issuer's total assets in excess of 
$100 million; minimum public distribution of 1,000,000 warrants with 
at least 400 public holders; and aggregate market value of $4 
million; or the warrants have already been approved for listing on 
another national securities exchange. See Securities Exchange Act 
Release No. 28358 (Aug. 21, 1990), 55 FR 35288 (File No. SR-Phlx-90-
07).
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    The listing criteria applicable to hybrid products that has been 
previously approved by the Commission are being retained.\18\ In 
addition, the Phlx has established listing standards, including some 
numerical standards, for contingent value rights (``CVR''), and will 
distribute a circular to members explaining specific risks associated 
with CVRs, which will emphasize the need to disclose their special 
characteristics to CVR investors and which will suggest that CVRs be 
recommended only to investors approved for options trading, or only 
after ascertaining their suitability for a customer.\19\
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    \18\See Securities Exchange Act Release No. 30466 (Mar. 11, 
1992), 57 Fr 9301 (File No. SR-Phlx-92-01). As indicated in the 
Commission's approval of the Phlx's hybrid products listing 
standards, these standards are not intended to accommodate the 
listing of securities that raise significant new regulatory issues 
as these products would require separate filings with the Commission 
pursuant to rule 19b-4 of the Act.
    \19\This circular will also remind members and member 
organizations that, before recommending a CVR transaction they must 
make the determination that such CVRs are suitable for such 
customer, even if that customer has been approved for options 
trading.
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    Alternative Tier I standards are being adopted to permit the 
listing of deserving companies who may be unable to meet the full 
listing criteria due to the nature of their business. The Phlx's 
alternative criteria are identical to the NASAA MOU, except that a $3 
price per share standard has been added.

2. Tier II

    For issuers not satisfying the Tier I standards, the Phlx is 
establishing listing criteria under Tier II. As noted above, Tier II 
standards are intended to provide mid-sized companies and research and 
development companies the opportunity to have their securities traded 
in an auction market, thus increasing liquidity and issuer access to 
the investment community. The Phlx intends that Tier II listed 
securities, however, will be limited to the current Phlx blue sky 
exemptions.
    The numerical Tier II standards for common stock are lower than 
those for Tier I, but generally higher than the current Phlx listing 
criteria. Following are the initial listing standards for Tier II 
(including a comparison of the Phlx's current listing standards:\20\
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    \20\All issues listed prior to the adoption of these rules must, 
within six months, demonstrate full compliance with all applicable 
maintenance criteria, or be subject to delisting.

------------------------------------------------------------------------
      Description          Current Std.      New Std.      New Std. Alt.
------------------------------------------------------------------------
Net Tangible Assets.....      $1,000,000      $1,500,000      $2,000,000
Earnings--Net Income....        Positive         100,000             N/A
Public Dist.--Shares....         250,000         750,000         750,000
Public Dist.--Shrhldrs..           1,000             500             500
Stock Price--Agg. MV....        $500,000      $2,250,000      $2,250,000
Minimum Bid.............             N/A     $3.00/share     $3.00/share
------------------------------------------------------------------------

    The Phlx is also adopting new numerical Tier II listing standards 
for preferred stock; warrants; bonds, debentures or notes; units;\21\ 
ADRs and ADSs. In many cases, the numerical standards are being 
increased by at least 50% from the current listing standards. In the 
case of shares of a foreign issuer, numerical standards are being 
adopted for the first time. With respect to ADRs and ADSs, the Phlx 
will consider the law and practice of the home country in evaluating 
the election and composition of the board of directors, shareholder 
approval, voting rights and quorum requirements for meetings, and the 
issuance of quarterly earnings statements.\22\
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    \21\When securities are listed as units, the applicable 
standards for each component of the unit would be those that pertain 
to the respective securities comprising the unit offering. For 
example, if a unit offering consists of one share of common stock 
and one share of preferred stock, the respective standards for both 
must be met for the offering to be listed. Letter from Michele R. 
Weisbaum, Associate General Counsel, Phlx, to Michael Ryan, 
Attorney, SEC (May 9, 1994).
    \22\A company seeking relief under these provisions will be 
required to provide written certification from independent local 
counsel that the non-complying practice is not prohibited by home 
country law.
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    To distinguish between securities listed pursuant to Tier I and 
those listed pursuant to Tier II, the Phlx will identify Tier I 
securities with the suffix ``TI'' annexed to their ticker symbol and, 
if possible, the closing prices in Tier I and Tier II securities will 
be carried in separate newspaper tables. If a Tier I listed security 
fails to satisfy Tier I maintenance standards, the issuer will be 
delisted and may seek to relist pursuant to the Exchange's Tier II 
standards. Moreover, if a Tier II listed security matures to the point 
that it could meet the Tier I standards, the issuer must apply and 
receive approval to list the security pursuant to the Tier I standards 
before the Exchange will deem such a security to be a Tier I issue.

3. Initial Public Offerings (``IPOs'')

    The Phlx is adopting listing criteria specifically addressing IPOs 
for the first time. An IPO issuer must provide a letter of undertaking 
from the principal investment banker which opines that the company will 
meet the requisite level of shareholders, market value and price to be 
eligible for listing. The issuer must meet the applicable initial 
listing criteria prior to the offering or will have a one month grace 
period to satisfy the rules by meeting the applicable criteria for a 
majority of trading days of their first month.\23\
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    \23\Among other things, Amendment No. 3 amended the proposal to 
provide that an IPO issuer may not use the proceeds of the IPO to 
satisfy the net tangible asset listing requirement. Letter from 
Michele R. Weisbaum, Associate General Counsel, Phlx, to Michael J. 
Ryan, Jr. ATTORNEY, SEC (dated May 9, 1994).
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4. Tier I and Tier II Corporate Governance Standards

    With respect to voting rights, the Phlx is retaining its current 
rule (renumbered) prohibiting listings by an issuer of any class of 
securities that has the effect of nullifying, restricting or 
desperately reducing the per share voting rights of holders of an 
outstanding class of common stock.
    The Phlx also is adopting standards for: issuer disclosure policy; 
approval of certain corporate actions; dividends and stock splits; ex-
dividend an ex-rights; issuer accounting procedures; annual and 
quarterly reports; and shareholders meetings. These standards closely 
parallel those adopted by the CBOE and approved by the Commission.\24\ 
Where the CBOE standards conflict with the qualitative standards set 
forth in the NASAA MOU, the Phlx adopted the approach in the MOU.
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    \24\Securities Exchange Act Release No. 28556 (Oct. 19, 1990), 
55 FR 43233 (Oct. 26, 1990) (approving SR-CBOE-90-8).
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    The new corporate disclosure policies, patterned after CBOE rules, 
incorporate an issuer's duty to disclose as a term of the Phlx's 
listing agreement under Tier I or Tier II standards. The new rules 
provide guidelines regarding the content and preparation of public 
announcements and requires the issuer to provide all such announcements 
to the Exchange prior to release.
    Many of the new rules regarding dividend and subscription rights 
merely articulate industry standards for processing and payment of 
stock dividends and subscription rights.\25\ The Phlx codifies its 
expectation that companies and their auditors abide by the rules of 
conduct of the AICPA Code of Professional Ethics, and requires audit of 
financial statements by independent accountants. In addition, the 
Exchange must be notified when a company changes independent 
accountants.
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    \25\For example, the rules relate to accounting, cash in 
settlement of fractional shares, record dates, procedures for ex-
dividend and ex-rights, return of dividends, warrant splits, and 
other similar events.
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    Other new Exchange rules require companies to hold shareholder 
meetings unless, upon prior Phlx approval, the Phlx permits 
solicitation of written consents in lieu of such meeting. The new rules 
recognize the need for independent audit committees on corporate boards 
of directors, and require Tier I companies to have at least two 
independent directors on their boards.

5. Maintenance Requirements and Delisting Procedures

    Tier I maintenance standards are patterned on CBOE Rules previously 
approved by the Commission.\26\ Because Tier II maintenance standards 
are generally higher than current maintenance standards, all issues 
listed prior to adoption of these rules will be given six months to 
demonstrate full compliance with all applicable maintenance criteria or 
be subject to delisting. Maintenance reviews will be conducted 
quarterly and whenever the Securities Department staff becomes aware 
that a company no longer complies fully with applicable requirements. 
The delisting process may be triggered automatically by an issuer 
violating an enumerated standard. In addition, other types of events 
which may trigger suspension or delisting are enumerated including,for 
example, failure to comply with the Exchange's listing agreement; 
failure to pay Exchange fees; and the sale or disposal of an issuer's 
operating assets. The determination to continue trading regardless of 
whether the security satisfies the relevant numerical maintenance 
criteria depends on facts and circumstances to be decided by the 
Committee in light of the objectives of the Exchange's listing 
policies. Finally, the Exchange reserves the right to suspend trading 
or delist any security it considers unsuitable for continued trading on 
the Phlx, notwithstanding that it otherwise satisfies the applicable 
maintenance criteria.
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    \26\See Securities Exchange Act Release No. 28556 (Oct. 19, 
1990), 55 FR 43233 (Oct. 26, 1990) (approving SR-CBOE-90-8).
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    If the quarterly or other review shows that an issuer fails to 
satisfy applicable maintenance criteria, the issuer will be subject 
automatically to delisting proceedings. The Exchange will furnish the 
company with a statement indicating the facts and circumstances 
suggesting delisting. The company may respond within 20 days with any 
reasons not to delist.\27\ Where the Committee determines delisting is 
appropriate, the company has the right to appeal to the Board of 
Governors, which may hold a hearing and make a final determination.
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    \27\Where the Committee determines that the company's written 
response warrants a grace period to rectify the deficiency, the 
Committee may grant a grace period. Nonetheless, the Commission 
expects that any grace period will be limited in duration and that, 
as indicated in note 9 above, the listing standards are non-
waivable.
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III. Discussion

    The Commission 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,the requirements of Section 6.\28\ The Commission believes 
that the proposal is consistent with the Section 6(b)(5) requirements 
that the rules of an exchange be designed to perfect the mechanism of a 
free and open market and a national market system and to protect 
investors and the public interest.
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    \28\15 U.S.C. 78f (1988).
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    The development and enforcement of adequate standards governing the 
initial and continued listing of securities on an exchange is an 
activity of critical importance to financial markets and the investing 
public. Listing standards serve as a means for a self-regulatory 
organization to screen issuers and to provide listed status only to 
bona fide companies with sufficient float, investor base and trading 
interest to maintain fair and orderly markets. Once a security has been 
approved for initial listing, maintenance criteria allow an exchange to 
monitor the status and trading characteristics of that issue to ensure 
that it continues to meet the exchange's standards for market depth and 
liquidity. For the reasons set forth below, the Commission believes 
that the proposed rule change will provide the Phlx with greater 
flexibility in determining which securities warrant inclusion on the 
Exchange, without compromising the benefits that the Exchange's listing 
standards offer to investors.
    The Commission notes that most of the Phlx's new listing standards 
are substantially similar to the rules of existing national securities 
exchanges and the Nasdaq National Market and, therefore, finds that 
these standards are equally acceptable for the Phlx. To the extent that 
Phlx's proposed rules do differ from those of existing national 
securities exchanges and the Nasdaq National Market, the Commission 
finds them also to be consistent with the Act.
    In addition to the heightened quantitative standards, the other 
qualitative requirements, such as the establishment of audit 
committees, voting rights, shareholder approval, and disclosure 
policies ensure that companies trading on the Phlx will adequately 
protect the interests of public shareholders. The Commission also notes 
that because the listing and maintenance standards are non-waivable, 
only companies suitable for exchange listing are eligible for trading 
on the Phlx. Furthermore, the prohibition on IPO issuers of using the 
proceeds from the IPO to meet the listing standards will provide public 
investors greater protection.
    Finally, the Commission believes that inclusion of a security for 
listing on an exchange, should not depend solely on meeting 
quantitative criteria, but should also entail an element of judgment 
given the expectations of investors and the imprimatur of listing on a 
particular market.\29\ The Commission believes that this rule provides 
the necessary flexibility to determine whether to list an issuer while 
ensuring that certain minimum standards must be met. Thus, the 
Commission believes that the new listing and maintenance standards 
strike the appropriate balance between protecting investors and 
providing a marketplace for issuers satisfying the disclosure 
requirements under the federal securities laws. The new standards will 
provide important guidance to the Phlx review process, and will alert 
issuers seeking listing on the Phlx, as well as current Phlx issuers, 
of the Exchange's specific standards.
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    \29\See e.g., In the Matter of Silver Shield Mining and Milling 
Company, Securities Exchange Act Release No. 6214 (Mar. 18, 1960) 
(``use of the facilities of a national securities exchange is a 
privilege involving important responsibilities under the Exchange 
Act''); In the Matter of Consolidated Virginia Mining Co., 
Securities Exchange Act Release No. 6192 (Feb. 26, 1960) (same).
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    Finally, as indicated above, the amendments submitted by the Phlx 
were largely technical in nature and generally had no substantive 
impact on the original filing. Thus, the Commission has determined that 
good cause exists for granting accelerated approval with respect to 
these amendments.

IV. Conclusion

    For the reasons stated above, the Commission believes the rule 
change is consistent with the Act and, therefore, has determined to 
approve it. The rule change provides enhanced listing standards for 
Phlx listed securities which provide greater protection of investors 
and the public interest.
    The Commission does not believe that the rule change will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act, as amended.
    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\30\ that the rule change SR-Phlx-93-31 be, and hereby is, 
approved, including Amendments No. 1, 2, 3 and 4 on an accelerated 
basis.
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    \30\15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\31\
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    \31\17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-15430 Filed 6-23-94; 8:45 am]
BILLING CODE 8010-01-M