[Federal Register Volume 67, Number 233 (Wednesday, December 4, 2002)]
[Notices]
[Pages 72243-72244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30679]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-46905; File No. SR-Amex-2002-85]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change and Amendment No. 1 Thereto by 
American Stock Exchange LLC Relating to Amendments to Sections 610 and 
701 of the Exchange Company Guide

November 25, 2002.
    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 17, 2002, the American Stock Exchange LLC (``Amex'' 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. On 
November 19, 2002, the Exchange filed Amendment No. 1 to the proposed 
rule change.\3\ The Exchange filed the proposed rule change pursuant to 
Section 19(b)(3)(A) of the Act,\4\ and Rule 19b-4(f)(6) thereunder,\5\ 
which renders the proposal effective upon filing with the Commission. 
The Commission is publishing this notice to solicit comments on the 
proposed rule change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See letter from Claire McGrath, Senior Vice President and 
Deputy General Counsel, Amex, to Nancy Sanow, Assistant Director, 
Division of Market Regulation (``Division''), Commission, dated 
November 18, 2002 (``Amendment No. 1''). In Amendment No. 1, the 
Exchange proposes to add the phrase ``(including any intepretations 
thereof by the SEC)'' to Section 610 of the Amex Company Guide.
    \4\ 15 U.S.C. 78s(b)(3)(A).
    \5\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Amex proposes to amend Sections 610 and 701 of the Amex Company 
Guide to clarify that annual reports and proxy materials may be 
delivered as permitted by and in compliance with applicable state and 
federal law. The text of the proposed rule change is below. New 
language is italicized; deleted language is bracketed.

Sec. 610. Publication of Annual Report

    A listed company is required to publish and furnish to its 
shareholders (or to holders of any other listed security when its 
common stock is not listed on a national securities exchange) an annual 
report containing audited financial statements prepared in conformity 
with the requirements of the Securities and Exchange Commission. The 
company must disclose in its annual report to security holders, for the 
year covered by the report: (a) The number of unoptioned shares 
available at the beginning and at the close if the year for the 
granting of options under an option plan; and (b) any changes in the 
exercise price of outstanding options, through cancellation and 
reissuance or otherwise, except price changes resulting from the normal 
operation of anti-dilution provisions of the options. Three copies of 
the report must be filed with the Exchange. Distribution of the annual 
report to shareholders shall be in such format and by such means as 
permitted or required by applicable law and regulation (including any 
interpretations thereof by the SEC). (See, for example, materials 
referenced in Sec. 701, Comm. .01 of the Company Guide)

Sec. 701. Filing Material [Mailed] Distributed to Shareholders

    A listed company is required to file with the Exchange five copies 
of proxy statements, forms of proxy and other soliciting materials 
[mailed] distributed to shareholders. A listed company is also required 
to file with the Exchange one copy of the notice of shareholders' 
meetings and three copies of annual reports [mailed] distributed to 
shareholders. Copies of such materials should be sent to the Exchange 
when [mailed] distributed to shareholders, unless the material was 
otherwise filed electronically with the SEC.

Commentary .01

    Proxy statements, forms of proxy and other soliciting materials 
shall be distributed by such means as are permitted or required by 
applicable law and regulation (including any interpretations thereof by 
the SEC). (See, for example, the following interpretations by the SEC: 
Release No. 34-36345, File No. S7-31-95; Release No. 34-37182, File No. 
S7-13-96; and Release No. 34-42728, File No. S7-11-00). Companies 
should also note Rule 576 applicable to member organizations regarding 
transmission of proxy material to customers.

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 Amex 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 Amex 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 Commission in recent years has issued several interpretations 
regarding electronic delivery of materials to shareholders, including 
proxy materials. The Exchange has rules governing delivery of proxy 
materials by member organizations to shareholders (Amex Rules 574 
through 585). Many of these rules are also included in the Amex Company 
Guide (Amex Sections 720 through 725). In addition, Amex Section

[[Page 72244]]

610 of the Amex Company Guide requires listed companies to publish and 
furnish to shareholders an annual report containing audited financial 
statements. In the interest of promoting greater efficiency and 
potentially reduced costs incurred by listed companies and member 
organizations in delivery of such materials to shareholders, applicable 
sections of the Company Guide are proposed to be amended to clarify 
that annual reports and proxy materials may be delivered as permitted 
by and in compliance with applicable state and federal law.
    The Exchange proposes to amend Amex Section 610 of the Company 
Guide to provide that a company's distribution of its annual report to 
shareholders shall be in such format and by such means as permitted or 
required by applicable law. Amex Section 701 of the Company Guide 
relating to filing of proxy materials with the Exchange would be 
amended to add Commentary .01 to provide that proxy materials shall be 
distributed by such means as are permitted or required by applicable 
law or regulation. For purposes of these provisions, applicable federal 
law includes any interpretations thereof by the Commission. References 
to materials ``mailed'' to shareholders in Amex Section 701 would be 
amended to ``distributed'' to reflect that alternative means of 
distribution (e.g., electronic mail) may be applicable.
    The Exchange will notify listed companies and member organizations 
of the amendments to Amex Sections 610 and 701, including reference to 
applicable state and federal law and Commission interpretations. In 
addition, the Exchange is interpreting Amex Rules 574 through 578 
applicable to transmission of proxy materials by member organizations 
to permit member organizations to transmit materials to beneficial 
owners consistent with the proposed amendments to Amex Section 701.
    Issuers and member organizations using electronic delivery means 
for annual reports, proxy materials and proxies are required under the 
proposed rule to ensure that they comply with current Commission 
interpretations, as well as any future interpretations that the 
Commission may issue on these issues. Amex understands that the 
Commission expects that the Exchange will monitor developments 
regarding electronic delivery requirements and notify their members and 
listed companies in the event the Commission issues future releases on 
these issues.\6\
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    \6\ Telephone call between Michael Cavalier, Associate General 
Counsel, Amex, and Jennifer Lewis, Attorney, Division, Commission, 
on November 20, 2002.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
withSection 6(b) of the Act,\7\ in general, and furthers the objectives 
of Section 6(b)(5),\8\ in particular, in that it is 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 a national market system, and, 
in general, to protect investor and the public interest; and is not 
designed to permit unfair discrimination between customers, issuers, 
brokers and dealers.
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    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    Amex believes that the proposed rule change will impose no burden 
on competition.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    No written comments were solicited or received with respect to the 
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the foregoing proposed rule change: (1) Does not 
significantly affect the protection of investors or the public 
interest; (2) does not impose any significant burden on competition; 
and (3) does not become operative for 30 days from the date of filing, 
or such shorter time as the Commission may designate if consistent with 
the protection of investors and the public interest, and the Exchange 
has provided the Commission with written notice of its intent to file 
the proposed rule change at least five business days prior to the 
filing date, the proposed rule change, as amended, has become effective 
pursuant to Section 19(b)(3)(A) of the Act \9\ and Rule 19b-4(f)(6) 
thereunder.\10\
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    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(6). The Commission notes that it 
recently approved an identical proposal by the New York Stock 
Exchange. See Securities Exchange Act Release No. 45838 (April 26, 
2002), 67 FR 22144 (May 2, 2002). The Commission did not receive any 
comments on that proposal when it was published for comment. See 
Securities Exchange Act Release No. 45602 (March 20, 2002), 67 FR 
14756 (March 27, 2002).
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    At any time within 60 days of the filing of such 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 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, as amended, is consistent with the Act. Persons making written 
submissions should file six copies thereof with the Secretary, 
Securities and Exchange Commission, 450 Fifth Street, NW., Washington, 
DC 20549-0609. 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. Copies of such 
filing will also be available for inspection and copying at the 
principal office of the Amex. All submissions should refer to File No. 
SR-Amex-2002-85 and should be submitted by December 26, 2002.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 02-30679 Filed 12-3-02; 8:45 am]
BILLING CODE 8010-01-P